Rambam - 1 Chapter a Day

The fundamental purpose of the oath required of the watchman is to clarify how the article was lost.

Sefer HaMitzvot (Positive Commandment 242) and Sefer HaChinuch (Mitzvah 57) count the laws pertaining to an unpaid watchman as one of the 613 mitzvot of the Torah. (See also Hilchot Sechirut 1:2.)

As explained in Hilchot To’en V’Nit’an 1:12, whenever a person is required to take an oath by a plaintiff, the plaintiff may require him to deny any other claims he has against him in that same oath.

In addition, he must take an oath that the entrusted object is no longer in his possession (Chapter 6, Halachah 1).

For if the watchman was negligent, he is liable to make restitution for the article.

Misappropriating the article causes the person to be considered a thief and he becomes liable for the article until he returns it (Hilchot Gezeilah 3:11).

The Rambam is speaking about practices that were prevalent in the Talmudic period and in his age. In every community, the “ordinary manner watchmen do” depends on the local norms.

Although many people pass through the gatehouse, since the objects kept there are large and heavy, we do not suspect that they will be stolen from there (Seifer Me’irat Einayim 391:21).

Seifer Me'irat Einayim 391:22 raises a question regarding this statement based on Halachah 4, which states that gold and silver should be watched by burying them in the ground. Seemingly, this would also apply to silver and golden objects. He offers two resolutions:
a) That because gold and silver are malleable, they might be damaged if buried, and
b) here we are talking about clothes with golden and silver threads.

Even an unpaid watchman. The Rambam considers negligence to be equivalent to the destruction of the article, as stated in Hichot Sechirut 2:3.

This law is an expression of the principle: “If at the outset, a person is negligent in his care for the article, even if it is ultimately destroyed by forces beyond his control, he is liable.” In the notes on Hilchot Sechirut 3:8, it was explained that according to the Rambam, the negligence must have something to do with the object being destroyed. If the object would have been destroyed regardless of the degree of care the watchman gave it, even if he was negligent at the outset, he is not liable.

As mentioned above, this ruling is reflective of the living conditions prevalent in Talmudic times and in the Rambam’s era. In that vein, the Be it Yosef (Choshen Mishpat 291) quotes Rabbenu Tam, who rules that when a house is built in a sturdy fashion, it is preferable to hide money there than to bury it. At present, such articles should be guarded in safes or safe-deposit boxes.

Bava Metzia 42b states “either in the handbreadth closest to the ground or closest to the ceiling.” The commentaries question why the Rambam mentions only the latter point.

By tapping the wall, they can feel that it has been hollowed out within.

Some manuscript copies of the Mishneh Torah state “some of the Geonim.
The Derishah (Choshen Mishpat 291) explains that the Rambam’s wording implies that most sages did not accept this position, because thieves desire money more than any other object, even an object of innate value.

In contrast to other metals, which may rust or corrode in the ground.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 291:16) uses the expression “close to the time between the setting of the sun.... “This addition is in place because from sunset onward we are obligated to observe the Sabbath prohibitions that forbid digging or covering the money with earth. Note the Siftei Cohen 291:22, which states that this leniency applies from noon onward.

He is, however, required to bury the money immediately after the Sabbath concludes.

The Maggid Mishneh explains that the pronoun “he” refers to the person who entrusts the money. In Babylon in Talmudic times, wine was very expensive and it was customary to recite havdalah over beer. Although this is acceptable, Torah scholars would still follow the custom of making havdalah over wine. Realizing the expense involved, the watchman could expect that the scholar who entrusted him with the money would require it Saturday night to purchase wine for the mitzvah. Therefore, he was not required to take the trouble to bury the money when it would be possible that he would have to uncover it shortly afterwards.
The Ra’avad and the Ritva, however, differ and maintain that the pronoun refers to the watchman. The Shulchan Aruch (loc. cit.) quotes the interpretation of the Maggid Mishneh, while the Tur and the Ramah maintain that the same law applies if the watchman is a Torah scholar.

Bava Metzia 42b cites Deuteronomy 14:25: “And you shall bind the silver in your hand” as a source for this concept.

In this manner, it is held securely, it is visible, and the watchman’s hands are free. Although there is no verse that indicates that this is an effective way of carrying money, logic dictates that it is preferable to carrying it in one’s hand.

As mentioned in the notes on Halachah 3, we are talking about a situation where had the person held the money in his hand or tied it to his stomach, it would not have been lost. If, however, it would have been lost even in such a situation, he is not liable. (See Hagahot Maaimoniot.)

For this is a very unlikely place to place money. It is well hidden, and the probability that the thieves will look there are less.

For it is common practice for a person to entrust these people with anything that belongs to him or that he is caring for.

The Meiri states that this applies both to Hebrew and Canaanite servants. The Mordechai, however, explains that the reason is that slaves are generally thieves, which implies that the ruling applies only to Canaanite servants and not to Hebrew servants (Seifer Me’irat Einayim 291:33).

Regardless of his age, a slave is not considered to be responsible. A person would not entrust his own articles of value to his slave (Maggid Mishneh).

A watchman may, however, give the entrusted article to a business associate or a partner, even if the latter does not live together with him (Beit Yosef, Choshen Mishpat 291).

Hilchot Sechirut 1:4. Even if the second watchman is willing to take an oath that the article was destroyed and he was not negligent in its care, his oath is not accepted. The owner may claim: “I am willing to accept the word of the person to whom I entrusted the article, but not the word of another person.”
Rabbi Akiva Eiger questions - without offering a resolution - why the Rambam mentions slaves and minors - who are not acceptable because they are not responsible - together with other adults, who are not acceptable for the reason mentioned in the previous paragraph.

The Maggid Mishneh quotes the Ramban and the Rashba, who explain that this law applies only with regard to money or other articles that are uniform in nature. If, however, the articles could be recognized as belonging to a certain person, we assume that a member of a person’s household will realize whether or not an article is borrowed, and if it is, take the appropriate precautions. This ruling is also cited by the Ramah (Choshen Mishpat 291:23).

From Bava Metzia 42b, where this story is told, it is apparent that the watchman’s mother was dwelling with him and thus was considered a member of his household.

For she thought that it belonged to her son, who would like to use it in the near future.

And hence must be treated more seriously than his own property.

For with regard to the incident mentioned in the previous Halachah, Bava Metzia, loc. cit., states that the mother is not liable, because she did not know that the money had been entrusted to her son.

With regard to a married woman, since her husband is entrusted with the property she owns, her obligation to make restitution does not take effect until she is widowed or divorced.

Even if the other person does not have the means to pay, the original watchman is not liable (Maggid Mishneh). Rabbenu Asher and the Tur do not accept this principle and rule that the original watchman is liable in such a situation. Their rationale is that if this were not the ruling, whenever an entrusted article is given to a person, it will be consumed by his wife and children. Note the Ramah (Choshen Mishpat 291:24), who quotes both views.

I.e., his own hops, not those entrusted to him.

Although the Shulchan Aruch (Choshen Mishpat 291:25) quotes the Rambam’s opinion, it also mentions the minority opinion of Rabbenu Nissim, who rules that the watchman is liable, because he should have given explicit instructions to his attendant.

I.e., for the improvement the hops brought about within the flavor of the beer.

For he did not receive any benefit.