Question
I am a sofer. I was in touch with an agent who buys parshiyos from sofrim and resells them. Before deciding whether to market my parshiyos he asked to take a picture and show it to others. He came to my office and asked to take a sample to another table in order to get a good snapshot. When he took it to the other table, I told him he should be very careful because he was sweating. He leaned over the parshiyos in order to take the picture and then returned them to me. Immediately after he returned the parshiyos to me I showed him that some letters became smudged. In the picture that he took the letters were not smudged. The agent said that he is unaware that any sweat of his fell on the letters. Also, there were other people in the room and perhaps some saliva from someone else fell on the letters. Since I did not see any sweat fall on the letters, I cannot say for certain that the agent is the one who damaged the letters. The agent said that even if he is just chayav lotseis yedei shomayim he will pay. Is he obligated to pay?
Answer
The first question to consider is whether the agent assumed the status of a shomeir. If he was a shomeir on the parshiyos he may be liable even if someone who is not a shomeir would not be liable.
There are several issues that have to be decided before we can decide if the agent is a shomeir. One relevant factor is that the agent never took the parshiyos out of your office.
Whether a person who never took an object out of the house of its owner can become a shomeir is discussed in a different context. The Mishna (BM 80B) states that a craftsman is a shomeir sochor on the object that he was given to work on. Rashi comments that the craftsman that the Mishna refers to is one who is paid for accomplishing a task (a kablan) who works in his own house. The implication of Rashi is that the ruling of the Mishna does not apply to a worker who is paid for his time (a po’eil). The Sema (306, 1) actually rules this way and gives as a reason for the distinction of Rashi is that one who is paid for his time generally performs the work in the house of the owner of the object and therefore cannot become a shomeir, whereas one who is paid for a job usually works in his own place.
The Shach (306, 1) disagrees with the Sema’s ruling. He says that Rashi only differentiated between the two types of craftsmen at the initial stage of the Gemara, but there is no difference according to the conclusion of the Gemara. The Shach states explicitly that the fact that the work is being performed on the premises of the owner does not prevent the craftsman from assuming the status of a shomeir.
The Machane Efraim (Shomrim 41) agrees with the Sema. His rationale will give us insight into the nature of this condition, according to those who agree with the Sema. He states that the reason a craftsman who removes an object from its owner’s property assumes responsibility, is because its owner can no longer watch over his object. However, if he leaves the object in the property of its owner, the owner can watch over his object and therefore, the craftsman does not assume the responsibility of a shomeir over the object. This is also the way the Ma’asei Uman (page 38) understood the Sema.
According to this approach, since you could not watch over your parshiyos to prevent damages such as from sweat or saliva when they were moved over to the table, even according to those who follow the Sema the agent assumed that responsibility since he and not you had the ability to prevent this type of damage. Had there been a robbery, which is something over which you had as much control as the agent, the Sema and Machane Efraim would maintain that the agent is not liable, whereas the Shach would rules that he is.
However, since your issue is damage from sweat at the time that the parshiyos were moved to the table, and the agent and not you (the owner), could prevent the damages, even according to the Sema and Machane Efraim, the agent had the status of a shomeir over the parshiyos. We note that we find in many places (e.g., BK 47B) in the Gemara that one can be a shomeir for certain types of damages and not for others.
The next issue that needs to be addressed is how the agent became a shomeir because the Gemara (BK 79A) rules that in order to become a shomeir the shomeir must perform a kinyan, just like one needs to perform a kinyan in order to acquire an object.
In the general case of a craftsman the Nesivos (306, 1) says that since when starting to work the worker benefits because the employer can no longer fire him, the employee’s starting to work is a kinyan. The agent benefited from putting the parshiyos on the table since he wanted to photograph the parshiyos in order to decide if he will act as your agent and earn money thereby. However, one only needs to resort to the reasoning of the Nesivos in the case of a worker who never picked up the things that he needed to work on. In your case, we do not need the Nesivos since the agent picked up the parshiyos, thereby performing an act of hagboho, which is a kinyan even when performed on its owner’s property.
Thus, we have determined that the agent was a shomeir on the parshiyos from the time that he took the parshiyos from you until he returned them to you. We have to determine what happens if a shomeir returns an object that is damaged but neither he nor the owner know if the damage befell the object in a manner for which the shomeir is liable or not.
There are different types of shomrim. Even the type of shomer who voluntarily watches over someone else’s object, called a shomeir chinom who has the most limited responsibilities, is liable if the object under his guardianship was damaged due to his negligence.
The Torah states that when a shomeir chinom claims that the damage was not due to his negligence, he must swear to that effect. Thus, in order for the agent to avoid liability for returning your damaged parshiyos he needs to swear that his negligence did not cause the smudges. In your case he is unable to swear to that effect since he is far from certain that it is not due to his negligence, and one must be one hundred percent certain that he is saying the absolute truth before he swears.
According to many opinions, including the Terumas Hedeshen (1, 333), Ramo (340, 3) and the Shach (291, 44: 340, 7) whenever a shomeir is unable to swear that he is not liable, he must pay. This is because when the Torah rules that one must swear, the Torah is really ruling that he is liable, just that if he swears he can avoid this liability.
While there are opinions (e.g., the Nimukei Yosef) that maintain that in certain cases the shomeir can avoid liability even if he is unable to actually swear, they would not rule that way in your case. The Nesivos (291, 28) explains that it is only when the watchman did not have to be aware of the precise circumstances of the object that these opinions are lenient to the shomeir. This does not apply in your case since you warned him to be careful because he was sweating. The Ketsos (340, 4) also maintains that even the lenient opinion rules in your case that the agent is liable because he was clearly negligent in handling parshiyos when he was sweating.
Even if we do not rule that the agent had the status of a shomeir, since he said he would pay if he is chayav bdinei shomayim (liable in the heavenly court), he would need to pay. The reason is that even though no one saw sweat drop from his head onto the parchment, there is very strong circumstantial evidence that his sweat is what caused the smudge.
The Gemara (Shevuos 34A) records a dispute of Tanaim when there was a herd of camels that belonged to different owners and one camel was found dead. One opinion is that even if no one saw how the animal died but there are witnesses who say that one particular animal was kicking, its owner is liable. However, we rule (CM 408, 2) that in this case the circumstantial evidence is insufficient to force someone (who is not a shomeir) to pay.
The SA (CM 15, 5) records the ruling of the Rambam (Sanhedrin 24, 1) that in principle dayanim can rule without testimony of witnesses if they are totally convinced of something. Thus, some poskim (e.g., Nachal Yitzchok siman 16) rule based on this Rambam that if everyone would conclude that someone is liable, beis din can actually force the person to pay. However, the Rambam himself says that since this ruling leaves the decision to the judgment of beis din and not every beis din is fully reliable, we do not use of this principle.
However, in your case, since the agent said he would pay if he is chayav bedinei shomayim, he should pay because, based on the strict halachah of this Rambam, even beis din could force him to pay so that he certainly remains chayav bedinei shomayim.
In conclusion: The agent is liable for having damaged your parshiyos and since he was a shomeir, beis din would force him to pay.
