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Friday, October 15, 2010

CRIMES AND MISDEMEANORS AND BAILMENTS – BABA METZIA, CHAPTER 3

Dostoyevsky would be my preferred author to turn chapter 3 of Baba Metzia into a novel. It opens with a request for a simple favor, “Would you watch over my goods for a while,” and ends as a psychological drama as the presumed guard contemplates theft. This is the trajectory traced by this chapter which serves as an extended exploration of the verses from Exodus 22:6-8:
If a man shall deliver to his neighbor money or utensils to keep, and it is stolen from the man’s house; if the thief is found, let him pay double. If the thief is not found, then the master of the house shall be brought to the judges, to see whether he has put his hand to his neighbor’s goods. For every kind of trespass, whether it be for ox, for ass, for sheep, for garment, or for any kind of lost thing, which another challenges to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double to his neighbor.

I find it hard to blog on the individual issues within this chapter. The arguments tend to be complex and not easily summarized. The chapter as a whole, however, serves as a cautionary tale worthy of our notice.

The opening mishnah (B. Baba Metzia 33b), poses what sounds like a simple situation: “If someone deposits an animal or vessels with his friend and it gets stolen or lost.” The questions that follow are predictable: how does one substantiate that the goods were stolen, what compensation is due, what happens if a thief is located after a settlement has been reached. In certain ways the Talmudic concerns differ from our own because there is the possibility of goods having been dedicated to the Temple. It is a complication without parallel in the modern world. Much of the discussion that follows is recognizable in our contemporary setting.

The problem at the root of this discussion is that the one who is watching over the goods is the legitimate caretaker, but not the owner. On one hand, he bears responsibilities that are similar to an owner, but there are limits on his behavior. On the other hand, the goods in his possession may be a temptation. The Mishnah explores a variety of permutations on the theme, which leads to the title of this blog. What begins as a bailment (a legal arrangement that arises when a person gives property to someone else for safekeeping), may lead one to consider committing a misdemeanor or tempt one to consider even worse crimes.

At the outset the focus notes the tension between ownership and possession. “If one rents a cow from his fellow and then lends it to another, and then the cow dies or natural causes.” (B. Baba Metzia 35b) On whose watch did the cow die? Is there compensation for the owner who has lost a cow, for the renter who no longer has the means to complete his work, or for the borrower? More, the cow, which can be sold for meat, still has some value. Who is to benefit from that value?

Fittingly the Mishnah discusses the differences that exist when dealing with different goods. If one is entrusted with an animal, there is a responsibility for the maintenance of the animal. When storing produce, which can rot or be eaten by vermin, different considerations come into play. And if one entrusts money for safekeeping with another, there are appropriate ways to protect those funds.

By the middle of the chapter, the focus begins to shift. What if the guardian was guarding a barrel of wine, but moved it about and it broke? If he was authorized to move it about, perhaps it is okay. But then the sages wonder if he was moving it for its own benefit, to somehow improve his situation, or if the move was for his convenience or benefit. Perhaps he was using it as a stepladder to reach some high object. One must distinguish between several possible ways to understand the guardian’s actions. The last half of the chapter tries to sort between these possible understandings of a guardian’s action:
• the latitude the guardian was given by the owner,
• the reasonable authority he held as the one on the scene,
• the possibility of negligence in caring for the property poorly,
• the opportunity to borrow some of the goods now with the intention of returning them before the owner reclaims the goods,
• the temptation to misappropriate the goods (say, to have an occasional sip from the stored wine),
• or the enticement to steal the object for his own benefit.

The final mishnah considers the intention that may precede action. “Someone who intends to misappropriate a deposit…” (B. Baba Metzia 43b) Beit Shammai (44a) considers that the thought is sufficient to establish the crime, while Beit Hillel argues that he is not liable until he actually stretches out his hand to do the deed.

Throughout our study of this chapter I found parallels between the gemara and the daily news. Revelations of malfeasance, from Madoff to unscrupulous mortgage lenders to unexamined foreclosures, reflected the ancient discussions of the sages. In the simple act of asking a friend to watch over some goods, we have explored a wide range of possible deeds and misdeeds. It recognizes that entrusting goods to another is not a simple act at all. It opens up questions of competence and integrity. It acknowledges the temptation that we feel when we have control over another’s property.

The last word of the chapter is teiku, meaning that the question remains unanswered until Elijah the Prophet comes to resolve all outstanding questions in advance of the Messiah’s arrival. While it responds to a specific and limited issue within the gemara, I feel that the choice to leave this as the last word points to a bigger matter. When we are entrusted with another person’s goods we face choices on how we will act in this instance. Will we be a trustworthy guardian of the bailment in our hands, or will we succumb to the temptation to commit crimes and misdemeanors.

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