Ensnarement and Atonement
‘The Only Proper Guarding Of Coins Is In The Ground’
(Bava Metzia 42a)
Our sugya mentions the rule that a person entrusted with safekeeping an article (a shomer) must compensate the owner if the object is lost due to an accident (oness) that started off as neglect. The Gemara gives an example of a shomer who was given money for safekeeping which he left in a fowler’s trap in a forest. Although such a site is not frequented by thieves, the money was nevertheless stolen. The shomer appears to have exercised proper care, but he must nevertheless compensate the owner since leaving money in a trap in a forest constitutes neglect as a trap is flammable and unfit for hiding money.
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: Oness requires that a shomer be able to claim that he did everything demanded of him. This shomer, though, cannot offer such a defense since if he had done everything demanded of him, he would not have put the money in a trap that is subject to the elements.
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 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 or exiled,” they said. “Maybe now she would agree to receive a get. We may not allow him to marry another wife 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 asserted, was a willful act of default on her part. Even if she is now an oness and prevented from expressing herself, the situation should be regarded as a matter that started off as neglect and now is one of (possible) oness. Therefore, he ruled, the husband can 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 mezuzahs were vandalized. He writes that there is no need for them to atone as the incident is surely one of oness. However, he writes, if prior to this incident mezuzahs in the synagogue had been damaged by rain, the situation is deemed to be one of 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 are weaker than previous ones. Rather, he instructs that each congregant give money to charity to atone for himself. Afterwards, all of them should gather together to recite the book of Tehillim.
