A SHOMER WITHOUT ACHARAYUS [Shomrim: Acharayus]
(Mishnah): If one said 'Alai (it is incumbent on me to offer an) Olah' (on condition) that I will offer (it) in Beis Chonyo (a place in Alexandria where some offered to Hash-m), he must offer it in the Mikdash;
If he offered it in Beis Chonyo, he was Yotzei.
Question: Why was he Yotzei? He killed it!
Answer (Rav Hamnuna): It is as if he said 'Alai Olah on condition that I will have no Acharayus (obligation to bring another Korban if the animal I will be Makdish is lost or disqualified).
Bava Kama 93a (Mishnah): If Reuven said to Shimon 'break my jug' (or) 'tear my garment', (and Shimon did), he is liable.
Contradiction (Beraisa): "(A Shomer is liable for negligence when given a deposit) to guard", but not (if it was given to him) to ruin, tear or distribute to Aniyim (the poor).
Answer (Rabah): In the Mishnah, he gave the deposit to be guarded. In the Beraisa, he gave it to be torn.
In Pumbedisa, Rav Yosef deposited a wallet with Tzedakah money with Ploni. He was negligent, and thieves took it. Rav Yosef obligated Ploni to pay.
Question (Abaye - Beraisa): "To guard", but not (if it was given)... to distribute to Aniyim.
Answer (Rav Yosef): (Elsewhere, we do not know who was destined to receive the money, so no Ani can claim it.) In Pumbedisa, each Ani gets a fixed amount from Tzedakah. Ploni was like a guardian for every Ani.
Bava Metzi'a 94a (Mishnah): A Shomer Chinam (one who guards a deposit for free) may stipulate to be exempt from swearing. A borrower may stipulate to be exempt from paying. A Shomer Sachar (one paid to guard a deposit) or renter may stipulate to be exempt from swearing or paying.
Rosh Hashanah 6a (Beraisa): "Motzei Sefasech" is a Mitzvas Aseh (to offer Korbanos within the proper time). "Tishmor" is a Lav... "Nedavah" refers to a Nedavah.
He transgresses whether he separated but did not offer, or if he vowed but did not separate.
(Rava): The case of a Nedavah that was not separated is when he said 'it is Alai to bring an Olah, on condition that I have no Acharayus.'
Rambam (Hilchos Sechirus 2:3): If one was a Shomer for slaves or similar things (for which there is no Chiyuv Shemirah), and he was negligent, he must pay. One is exempt for them only for theft, loss, death and similar things. Negligence is like overt damage. One is liable for damage to land, like for Metaltelim. Also my Rebbeyim said so.
Rebuttal (Ra'avad): If so, a Shomer Chinam should need to swear that he was not negligent! Also, why do we exempt negligence b'Ba'alim? (An employer who guards a deposit is exempt from all Chiyuvei Shemirah, even for negligence.) Rather, negligence is unlike damage.
Mordechai (Bava Metzi'a 361): If one lent relying on a security (that he takes), he is a Shomer Sachar. If when he took the security he said 'I do not accept Acharayus', is he like a craftsman who said 'take your item', and he is a Shomer Chinam? Or, is he like one who said 'the house is in front of you' (take it whenever you want), and he is totally exempt? Maharam answered that he is not even a Shomer Chinam. If one would have been only a Shomer Chinam, and he stipulated to exempt himself from Acharayus, surely he is totally exempt. Rather, even if he would have been liable for Ones, saying 'without Acharayus', totally exemps himself. His words connote without any Acharayus, even for negligence, like we find in Menachos. Even though saying 'Harei Alai Olah' obligated himself even for Ones, when he stipulated not to accept Acharayus, he exempted himself even for negligence. Do not say that this is only when he stipulated to offer it in Beis Chonyo, for it is as if he said 'on condition that I will kill it', but normally, one who exempts himself from Acharayus is liable for negligence. The Gemara attributes his exemption to the stipulation not to have Acharayus. Also, this is unlike one who said 'take your item and bring the money.' There, he merely informed him that he consents to return the item before he is paid.
Question: A case occurred in which Shimon asked Reuven to bring a deposit to Ploni. Reuven said 'I refuse, for many things can occur on the road. If you want, cast it to the ground, and I will do a Chesed and take it to him, as if I found a Metzi'ah.' He put it in a Kli with his money, and it was lost not through negligence. Can he swear to exempt himself?
Answer (Maharit 2 CM 116): Does 'I will be like one who found a Metzi'ah' mean like one who acquired it from Hefker, and he has no Chiyuv Shemirah, even for negligence? If so, he is exempt even according to the Rambam, who obligates for negligence even when there is no law of Shemirah. Even the Rambam obligates (only) due to Shemirah. A stranger who was negligent is exempt. A Mishnah teaches that a Shomer Chinam may stipulate to be exempt from swearing, and a borrower may stipulate to be exempt from paying. It did not say that a Shomer Chinam can stipulate to be exempt for negligence. This is not because a stipulation would not exempt from negligence. Rather, the Mishnah taught only stipulations that appear to be contrary to Torah.
Maharit: The Mordechai understood from Maharam that one who did not accept Acharayus is exempt also for negligence. This is astounding. Surely if he overtly damaged or killed it, he is liable! He stipulated only to be exempt from Acharayus like a Shomer, but anyone who damages is liable! The Gemara means 'even though he killed it, i.e. offered it b'Chutz, which is not offering, he is like one who killed it.' He is not like one who overtly killed it, rather, like one who caused its death. He gave it to Kohanim in Beis Chonyo; he thought that this is a Mitzvah. This is considered negligence, for man is always Mu'ad, even if he was Shogeg or deceived. Had he done so to another's Korban, he would be exempt. Since he did not accept Acharayus, the same applies to his Korban.
Maharit: This requires investigation. Why does exemption from Acharayus exempt for negligence? Perhaps he stipulated only to exempt himself from theft or loss, but he is still a Shomer Chinam! He put it in his house, and he must guard it. It is no worse than an Aveidah that one found. One must guard it, and if he was negligent he is liable, like a Shomer Chinam! There is no proof from Menachos. The Gemara meant that it is as if he stipulated not to have Acharayus for that matter, i.e. he may kill it (offer it in Beis Chonyo). The Gemara did not need to explain, for presumably this is the case. Even if he said precisely 'on condition that I am exempt from Acharayus', this does not exempt for negligence. In any case he is not liable due to Shemirah, for it says "Re'ehu (his colleague)", and not Hekdesh. The case of the wallet proves that even negligence is exempt. One who vowed and separated a Korban is not a Shomer on it. Rather, he has Acharayus, even for Ones. One who accepted an item from another Stam is a Shomer. If he stipulated to be exempt from Acharayus, this refers to Chiyuvim from the outside such as theft or loss, but not for what he himself will do to it.
Shulchan Aruch (CM 72:7): If one lends on a security, and when he took it he said 'I do not accept Acharayus', he is not even a Shomer Chinam, and he is exempt even for negligence.
Source: Mordechai, cited in Beis Yosef DH uv'Sof.
SMA (27): The Rambam and some others consider negligence to be like overt damage regarding documents and similar things. They obligate, even though there is no Chiyuv Shemirah. Even so, here they exempt even for negligence, since he explicitly stipulated that he does not accept Acharayus.
Shach (39): 'I do not accept Acharayus' connotes even for negligence.
Gra: We learn from Menachos 109a.
Gra: This requires investigation, for in Rosh Hashanah we say that one transgresses Bal Te'acher (delaying bringing Korbanos) when he said 'it is Alai to bring an Olah, on condition that I have no Acharayus.' Maharam permits to kill it!
Tumim (23, cited in Ketzos ha'Choshen 14): The Shulchan Aruch connotes that if he overtly destroyed it, he would be liable. There, he killed the animal (Shechutei Chutz), yet he is exempt! This shows that Acharayus includes overt damage. We must say that there is different, for he vowed on this condition. It is as if he said 'if I will kill it, there was no vow from the beginning.' Here, we can say 'if I will be negligent, I never accepted Shemirah', but even one who is not a Shomer is liable for overt damage to others' property. This is like one who says 'tear my garment.' If he did not say 'on condition to be exempt', if the other tears it, he is liable (Bava Kama 92a). Here, no one stipulated to exempt (for overt damage)', therefore he is liable. However, overt damage is included in 'Acharayus'. Therefore, if one gave a gift 'on condition that I have no liability for Acharayus', even if he overtly damages it, he is exempt. The gift is void retroactively. The giver did not do anything to the recipient. He tore his own property.
Rebuttal (Ketzos ha'Choshen): This is not like one who says 'tear my garment' without saying 'on condition to be exempt.' Here we do not need 'on condition to be exempt', like it says in Bava Kama. A Shomer who was given something to tear it is not liable for it. We require 'on condition to be exempt' only if he initially took it for Shemirah, and afterwards the owner told him to tear it (Tur and Shulchan Aruch, CM 380:1). If overt damage] were included in Acharayus, he would be exempt even for this. Why does Maharam exempt only for negligence? Rather, overt damage is not included. It has no relation to Acharayus! Tosfos (Bava Kama 6b DH Shor) explained that one who damages Kodshim is exempt. One is liable only for "Shor Re'ehu." However, if one says 'Alai', he has Acharayus even for Ones. The Gemara asked 'he killed it', i.e. he has Acharayus, and answered that it is as if he stipulated to exempt himself from Acharayus. If negligence were not included in Acharayus, it would be as if he exempted himself only from Acharayus for theft or loss, and he would be liable for negligence, like a Shomer Chinam. Therefore Maharam proved that Acharayus includes negligence. When he killed it, he not liable due to Acharayus, and not due to damage, just like anyone who damages Hekdesh is exempt. Even if we will say that one who damages Hekdesh is liable mid'Rabanan, he must pay the owner (Rashi Gitin 53a DH Chayavin). If the owner damaged, he is not liable to Hekdesh. Therefore, if one gave a gift 'on condition that I have no liability for Acharayus', and he overtly damaged it, he is liable. Liability for overt damage is not included in Acharayus. The Maharit (4 CM 116) found the Mordechai astounding. According to what I said, it is not difficult at all.