BAVA METZIA 42 (14 Sivan) - Dedicated l'Iluy Nishmas Dina bas Reb Menachem Arye Bodner by her grandson, Mordechai Bodner of Yerushalayim.

OPINIONS: Shmuel rules that the only proper way to protect money is by burying it in the ground. Is this indeed what a Shomer is required to do in order to properly guard money entrusted to him?
(a) Most Rishonim (see RAMBAN, RASHBA, NIMUKEI YOSEF) maintain that the proper way to protect money depends on the particular time and the place. Shmuel refers only to those eras and places where thieves were very common. In modern times, it suffices to lock money in a secure place, just as a person normally handles his own money.
The Rishonim cite proof to this from the Yerushalmi which states that if a Shomer puts the money in a place which is well protected and where a person would normally put his own money, he is exempt if anything happens to the money. However, the RASH of VIDASH (cited by the Shitah Mekubetzes) -- although he agrees with the logic of this view -- refutes the proof from the Yerushalmi; he argues that the Yerushalmi may be referring to objects other than money. RABEINU YEHONASAN also suggests for the same reason that the Yerushalmi may not be a proof. Rabeinu Yehonasan adds that, logically, if the Shomer himself does not bury his own money in order to protect it, then when the owner of the money entrusts his money to the Shomer, it can be assumed that he does so with the knowledge that the Shomer will not bury it, and it is as if he expressly stipulates that the Shomer does not need to bury it.
(b) The TALMID HA'RASHBA maintains that Shmuel's ruling applies in all places and at all times, and the only proper way to protect money is burial. The BEIS YOSEF (CM 291) writes the same thing in order to explain the view of the RAMBAM who does not differentiate between different times and places.
This also seems to be the view of the HAGAHOS ASHIRI in the name of the OR ZARU'A. He adds that even if the Shomer places his own money into a secure chest for protection, he does not have the right to do that with the money of others, but rather he must bury it in the ground, and if he does not bury it he is Chayav if anything happens to it.
HALACHAH: RAV MOSHE FEINSTEIN zt'l in IGROS MOSHE (CM 2:53) writes that in our times, in countries that have banks where money can be deposited and withdrawn with no expense or bother, and where there is no risk of capital loss, a Shomer who is entrusted with money is obligated to put the money in a bank. That is the most ideal form of Shemirah, and it is even better than burial in the ground. (I. Alsheich)


QUESTION: The Gemara relates an incident in which an Apotropos, who was appointed to manage the property of orphans, purchased an ox for the orphans and deposited it with a shepherd to watch. Shortly afterwards, the ox died of starvation, since it had no teeth and was unable to eat. Rami bar Chama asked how the judges should rule in such a case. They could not obligate the Apotropos to compensate the orphans, for he could claim that he did nothing wrong -- he gave the animal to the shepherd to watch and it was the shepherd's responsibility to make sure that the ox was eating.
How can the Apotropos exempt himself with the claim that he gave the ox to the shepherd to watch? He nevertheless acted negligently when he bought the ox without looking into its mouth to make sure that it had teeth! (Rishonim)
(a) The RAMBAN answers that when the Apotropos bought the ox he did not act negligently, because it was not apparent that the ox could not eat. Only afterwards (when the ox died) did it become apparent that the ox could not eat.
(b) The Ramban answers further that perhaps the ability to discern whether an animal can eat is a matter that requires expertise, and most people are not veterinary experts. Therefore, there was no negligence on the part of the Apotropos, since it was not possible for him to know at the time of the purchase that the animal could not eat.
(c) The Ramban cites others who answer that the Apotropos was not responsible to check that the animal had teeth, since it is very uncommon for an animal to have no teeth (it is a "Milsa d'Lo Shechicha"). His failure to check for teeth, therefore, was not negligence. The shepherd, however, should have noticed that the animal was not eating.
The RASHBA adds that this is why the Apotropos' claim must include mention that he gave the animal to the shepherd. He must claim that he relied on the shepherd to check that the animal had teeth. (I. Alsheich)