Ensnarement and Atonement
‘The Only Proper Guarding of Coins Is in the Ground’
(Bava Metzia 42a)
Our sugya mentions the rule that if a person entrusted with safekeeping an article (a shomer) neglects it and it then becomes subject to accident (oness), he must compensate the owner. The Gemara quotes an example of a shomer who was given money for safekeeping, and he left it in a fowler’s trap in a forest. Although such a site was not one frequented by thieves, the money was nevertheless stolen. Though it would seem that the shomer exercised proper care, he must compensate the owner because leaving the money in a trap in a forest constitutes neglect since the trap is flammable and unfit for hiding money. In such an instance, the money is regarded as not having been properly guarded because of the rule that when an article is at first subject to neglect (in this case being that it was left in a flammable trap) and later becomes subject to an accident (oness), the shomer is liable.
The Lost Defense
The Rambam (Hilchos She’elah U’pikadon 4:6) rules likewise: “Our Sages said that though this is an excellent form of safekeeping from thievery, it does not serve to protect from fire. Since the shomer did not hide the money underground or in a wall, he is guilty of neglect, and any instance, starting with neglect and ending in oness obligates the shomer to compensate the owner.”
Rabbi Akiva Eiger, zt”l (Bava Metzia 36b, no. 29) explains the reason for this rule: In any case of oness, a shomer claims that he did everything demanded of him. This shomer, though, cannot state such a defense, since if he had done everything demanded, he would not have put the money in a trap that is subject to the elements and so it would not have been stolen.
A Wife Who Absconds from Her Husband
The above rule has served many poskim in judging a broad variety of cases beyond those of safekeeping. Somewhat over a century ago, a wife absconded from her husband, refusing to accept a bill of divorce (a get). The husband sought a heter me’ah rabbanim – the halachically required permission of 100 rabbis to marry another woman. Some rabbis hesitated, as he had lost all contact with his wife and her whereabouts and intentions were unknown.
“Possibly she was taken prisoner,” they said, “or exiled, and may now agree to receive a get. We may not allow him to marry another wife as the permit cannot be effected if the present wife is agreeable to a divorce.” However, the Maharsham (Responsa 6:137) was inclined to dismiss this reasoning. The wife’s initial disappearance, he asserts, was a willful act of default on her part. Even if she is now an oness and is prevented from expressing herself, her disappearance should be regarded as a matter that started with neglect and now ends in oness. Therefore, he ruled that the husband, may seek permission from 100 rabbis to marry another woman.
Mezuzahs Ruined by Rain
The Maharsham in yet another discussion (Responsa 2:264) applies this same rule in the matter of a congregation whose synagogue’s mezuzahs were ruined by vandals: that there is no need for them to atone as the incident is surely a case of oness. However, if previous to this incident mezuzahs in the synagogue had been subject to rain, the incident is now deemed as starting with neglect and ending in oness. The congregation should have put the mezuzahs in rainproof cases, and if they had done so, perhaps they would not have been vandalized.
However, even where a congregation must atone, the Maharsham does not obligate them to fast, as our generations have become weaker than in former times. Rather, he instructs that everyone of the congregants give money to charity to atone for themselves and then they should all gather together to recite the entire book of Tehillim.
