The commandment on the court to judge the case of one who takes a wage and of a renter: To judge the case of one who takes a wage and a renter. And the understanding of one who takes a wage is someone who guards a deposited item for a wage they give to him for guarding [it]; and [of] a renter is like its simple meaning, that he rented an animal from his fellow to ride or to do work, or he rented movable objects from him. And [if a] disagreement arose between the renter and the owner or between the owner of the deposited item and the one guarding it for a wage, it is a commandment upon us to adjudicate between them, as it is written in this section (Exodus 22:9), “If a man gives to another a donkey, an ox, a sheep or any animal to guard, etc.”
Its laws are for example, that which they, may their memory be blessed, said (Bava Metzia 93a) that we take an oath on the things of great duress (out of one’s control), but pay for theft or loss — since there is some negligence and some duress in this and because of the wage that we take for this, we are obligated to pay, which is not the case with the free guardian, who is exempt from everything except for negligence; the laws of the rental of workers (Bava Metzia 75b), the rental of animals and houses; the law of a craftsman that ruins [an item] (Bava Kamma 98b); one who shows a coin to a storekeeper and it is found to be bad (Bava Kamma 99b); the law that one who rents [the item, as well as hiring the] owners is exempted (Bava Metzia 4a); the laws of beginning with negligence and ending with duress (Bava Metzia 42a); the laws of a guardian who gave [the item] over to [another] guardian and the latter added or reduced its [level] of guardianship (Bava Metzia 36b); the matter that anyone who deposits, deposits with the knowledge that it is [also deposited to the guardian’s] wife and adult children (Bava Metzia 36b); that which they, may their memory be blessed, said (Bava Metzia 29b) that the renter is not permitted to rent it out. And Ramban, may his memory be blessed, wrote (it seems that the correct version reads Rambam, the source being Mishneh Torah, Laws of Hiring 2:5) that they only said this about movable objects — since it is not his will that his deposit be in the hand of another. But one who rents a house and wants to rent it out to another is permitted, so long as the later [inhabitants] be the same as the number of the first; and so [too] with a boat. But there are those that disagree with him (Raavad on Mishneh Torah, Laws of Hiring 2:5). And the rest of its details are elucidated in the sixth and seventh chapters of [Bava] Kamma, the third and sixth of [Bava] Metzia and the eighth of Shevuot. (See Tur, Choshen Mishpat 303-313.)
And [it] is practiced by males in every place and at all times. And if [one] transgressed it and did not judge — if he was fitting for it — he violated a positive commandment. And even though we were commanded to judge more generally with the law of the plaintiff and the defendant, the Torah added the command of guardians in particular, because they are common matters in human communities.
מִצְוַת בֵּית דִּין לָדוּן בְּדִין נוֹשֵׂא שָׂכָר וְשׂוֹכֵר – לָדוּן בְּדִין נוֹשֵׂא שָׂכָר וְהַשּׂוֹכֵר, וּפֵרוּשׁ נוֹשֵׂא שָׂכָר, שׁוֹמֵר פִּקָּדוֹן בְּשָׂכָר שֶׁנּוֹתְנִין לוֹ עַל הַשְּׁמִירָה, וְשׂוֹכֵר הוּא כְּמַשְׁמָעוֹ, שֶׁשָּׂכַר בְּהֵמָה מֵחֲבֵרוֹ לִרְכֹּב אוֹ לַעֲשׂוֹת בָּהּ מְלָאכָה, אוֹ שֶׁשָּׂכַר מִמֶּנּוּ מִטַּלְטְלִין, וְנָפַל מַחְלֹקֶת בֵּין הַשּׂוֹכֵר וְהַמַּשְׂכִּיר, אוֹ בֵּין בַּעַל הַפִּקָּדוֹן וְהַשּׁוֹמֵר אוֹתוֹ בְּשָׂכָר, שֶׁמִּצְוָה עָלֵינוּ לָדוּן בֵּינֵיהֶם, כְּמוֹ שֶׁכָּתוּב בְּפָרָשָׁה זוֹ (שמות כב ט) כִּי יִתֵּן אִישׁ אֶל רֵעֵהוּ חֲמוֹר אוֹ שׁוֹר אוֹ שֶׂה וְכָל בְּהֵמָה לִשְׁמֹר וְגוֹ'.
The commandment on the court to judge the case of one who takes a wage and of a renter: To judge the case of one who takes a wage and a renter. And the understanding of one who takes a wage is someone who guards a deposited item for a wage they give to him for guarding [it]; and [of] a renter is like its simple meaning, that he rented an animal from his fellow to ride or to do work, or he rented movable objects from him. And [if a] disagreement arose between the renter and the owner or between the owner of the deposited item and the one guarding it for a wage, it is a commandment upon us to adjudicate between them, as it is written in this section (Exodus 22:9), “If a man gives to another a donkey, an ox, a sheep or any animal to guard, etc.”
שֹׁרֶשׁ הַדִּינִין יָדוּעַ.
The root of the laws is well-known.
דִּינֶיהָ כְּגוֹן מַה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (ב"מ צג, א) שֶׁנִּשְׁבָּעִין עַל הָאֳנָסִין הַגְּדוֹלִים וּמְשַׁלְּמִין הַגְּנֵבָה וְהָאֲבֵדָה לְפִי שֶׁיֵּשׁ בָּזֶה קְצָת פְּשִׁיעָה וּקְצָת אֹנֶס, וּמִפְּנֵי הַשָּׂכָר שֶׁנּוֹטְלִין עַל זֶה חַיָּבִין לְשַׁלֵּם, מַה שֶׁאֵין כֵּן בְּשׁוֹמֵר חִנָּם שֶׁפָּטוּר עַל הַכֹּל חוּץ מִפְּשִׁיעָה. וְדִינֵי (שם עה, ב) שְׂכִירוּת פּוֹעֲלִים וּשְׂכִירוּת בְּהֵמוֹת וּבָתִּים, וְדִין (ב"ק צח, ב) הָאֻמָּן שֶׁקִּלְקֵל, וּמַרְאֶה (שם צט, ב) דִּינָר לְחֶנְוָנִי וְנִמְצָא רַע, וְדִין (ב"מ ד, א) שׂוֹכֵר בִּבְעָלִים שֶׁפָּטוּר, וְדִין (שם מב, א) תְּחִלָּתוֹ בִּפְשִׁיעָה וְסוֹפוֹ בְּאֹנֶס, וְדִינֵי (שם לו, ב) שׁוֹמֵר שֶׁמָּסַר לְשׁוֹמֵר וְהוֹסִיף הַשֵּׁנִי אוֹ גָּרַע בַּשְּׁמִירָה, וְעִנְיַן כָּל הַמַּפְקִיד שֶׁעַל דַּעַת אִשְׁתּוֹ וּבָנָיו הַגְּדוֹלִים הוּא מַפְקִיד (שם). וּמָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (ב"מ כט, ב) שֶׁאֵין הַשּׂוֹכֵר רַשַּׁאי לְהַשְׂכִּיר. וְכָתַב הָרַמְבַּ"ן זִכְרוֹנוֹ לִבְרָכָה (שכירות ב ה) שֶׁלֹּא אָמְרוּ זֶה אֶלָּא בְּמִטַּלְטְלִין לְפִי שֶׁאֵין רְצוֹנוֹ שֶׁיְּהֵא פִּקְדוֹנוֹ בְּיַד אַחֵר, אֲבָל בְּשׂוֹכֵר בַּיִת וְרָצָה לְהַשְׂכִּירוֹ לְאַחֵר רַשַּׁאי, וּבִלְבַד שֶׁיִּהְיוּ הָאַחֲרוֹנִים כְּמִנְיַן הָרִאשׁוֹנִים. וְכֵן בִּסְפִינָה, וְיֵשׁ חוֹלְקִין (דעת הראב"ד שם) עָלָיו. וְיֶתֶר פְּרָטֶיהָ מְבֹאָרִים בְּפֶרֶק שִׁשִּׁי וּשְׁבִיעִי מִן קַמָּא, וּשְׁלִישִׁי וְשִׁשִּׁי מִמְּצִיעָא, וּבַשְּׁמִינִי מִשְּׁבוּעוֹת [שם מש"ג עד שי"ג].
Its laws are for example, that which they, may their memory be blessed, said (Bava Metzia 93a) that we take an oath on the things of great duress (out of one’s control), but pay for theft or loss — since there is some negligence and some duress in this and because of the wage that we take for this, we are obligated to pay, which is not the case with the free guardian, who is exempt from everything except for negligence; the laws of the rental of workers (Bava Metzia 75b), the rental of animals and houses; the law of a craftsman that ruins [an item] (Bava Kamma 98b); one who shows a coin to a storekeeper and it is found to be bad (Bava Kamma 99b); the law that one who rents [the item, as well as hiring the] owners is exempted (Bava Metzia 4a); the laws of beginning with negligence and ending with duress (Bava Metzia 42a); the laws of a guardian who gave [the item] over to [another] guardian and the latter added or reduced its [level] of guardianship (Bava Metzia 36b); the matter that anyone who deposits, deposits with the knowledge that it is [also deposited to the guardian’s] wife and adult children (Bava Metzia 36b); that which they, may their memory be blessed, said (Bava Metzia 29b) that the renter is not permitted to rent it out. And Ramban, may his memory be blessed, wrote (it seems that the correct version reads Rambam, the source being Mishneh Torah, Laws of Hiring 2:5) that they only said this about movable objects — since it is not his will that his deposit be in the hand of another. But one who rents a house and wants to rent it out to another is permitted, so long as the later [inhabitants] be the same as the number of the first; and so [too] with a boat. But there are those that disagree with him (Raavad on Mishneh Torah, Laws of Hiring 2:5). And the rest of its details are elucidated in the sixth and seventh chapters of [Bava] Kamma, the third and sixth of [Bava] Metzia and the eighth of Shevuot. (See Tur, Choshen Mishpat 303-313.)
וְנוֹהֶגֶת בִּזְכָרִים בְּכָל מָקוֹם וּבְכָל זְמַן. וְאִם עָבַר עָלֶיהָ וְלֹא דָּן אִם רָאוּי לְכָךְ בִּטֵּל עֲשֵׂה. וְאַף עַל פִּי שֶׁנִּצְטַוִּינוּ דֶּרֶךְ כְּלָל לָדוּן בְּדִין טוֹעֵן וְנִטְעָן, רִבְּתָה הַתּוֹרָה צִוּוּי בְּשׁוֹמְרִים בִּפְרָט לְפִי שֶׁהֵן עִנְיָנִים רְגִילִין בְּיִשּׁוּבֵי בְּנֵי אָדָם.
And [it] is practiced by males in every place and at all times. And if [one] transgressed it and did not judge — if he was fitting for it — he violated a positive commandment. And even though we were commanded to judge more generally with the law of the plaintiff and the defendant, the Torah added the command of guardians in particular, because they are common matters in human communities.