Chapter 3: Liability in the Transfer and Return of Borrowed Property
Chapter Overview: Borrowing with Owner Present This section of Hilchot She’elah uFikkadon addresses the nuanced laws governing the transfer and return of borrowed property—particularly animals—when the item has not yet entered or has exited the borrower’s domain. The halachos explore liability in cases where the borrowed item is sent or returned via various messengers, including sons, servants, agents, and even Canaanite slaves. |
Halacha 1: Liability upon the Borrowed Animal being sent to the borrower
- If the lender sends the cow to the borrower via his own son, servant, or agent—or even via the borrower’s messenger—and the cow dies before entering the borrower’s domain, the borrower is exempt.
- However, if the borrower explicitly requests that the cow be sent via a specific person (his own or the lender’s), and the lender complies, the borrower becomes liable if the cow dies en route.
- An exception is made when the cow is sent via the lender’s Canaanite servant, in which case the borrower is exempt because the servant is considered part of the lender’s domain.
- If the cow walks on its own after being prodded by the lender, the borrower is not liable until it enters his domain.
Halacha 2: Liability When Returning the Borrowed Animal
- When the borrower returns the cow via someone else and it dies before reaching the lender’s domain, he is liable, since the cow remains under his responsibility.
- If the return is done with the lender’s consent via a third party, the borrower is exempt.
- However, if the borrower sends the cow back via his own Canaanite servant—even with the lender’s permission—and it dies en route, he is liable, because the servant is considered part of the borrower’s domain.
- If the cow is returned after the borrowing period has ended and dies on the way, the borrower is exempt, as he is no longer considered a borrower but a paid watchman.
Halacha 3: Uncertainty if damaged during Borrowing or Rental term
- If a cow is borrowed for part of the day and rented for another part, and it dies, and the parties disagree about when the death occurred, the burden of proof lies with the one seeking payment.
- If neither party can provide proof, the renter must swear regarding the rental portion and is then exempt. If one claims the cow died during borrowing and the other claims it died during rental, the renter swears according to his claim and is exempt.
- If the borrower cannot swear due to uncertainty, he must pay for both animals.
Halacha 4: Multiple Animals with some rented and some borrowed
- If multiple cows are involved—some borrowed and some rented—and one party claims that the borrowed cows died while the other is unsure which ones died, the borrower must pay for all the borrowed cows he cannot swear about.
- This principle follows the rule that one who cannot swear due to uncertainty must pay.
- The laws governing such cases are further elaborated in the laws of claims and counterclaims.
| Key Takeaway: The halachos in this section highlight that whether an item is sent or returned, the status of the messenger and the timing of the transfer are critical in determining responsibility. Furthermore, when uncertainty arises inability to swear with certainty often results in financial obligation. |
| Halacha | Scenario | Messenger/Status | Liability | Reason/Condition |
| 1 | Borrowed animal not yet in borrower’s domain | Lender’s son, servant, agent, borrower’s messenger | Borrower exempt | Animal dies before entering borrower’s domain |
| 1 | Borrower requests specific person as messenger | Borrower’s or lender’s messenger | Borrower liable | Borrower requested and lender complied; dies en route |
| 1 | Animal sent via lender’s Canaanite servant | Canaanite servant | Borrower exempt | Servant is part of lender’s domain |
| 1 | Cow walks on its own after lender prods | None | Borrower not liable | Until it enters borrower’s domain |
| 2 | Returning cow via someone else | Third party | Borrower liable | Dies before reaching lender’s domain |
| 2 | Return with lender’s consent via third party | Third party | Borrower exempt | Lender’s consent |
| 2 | Return via borrower’s Canaanite servant (even with permission) | Canaanite servant | Borrower liable | Servant is part of borrower’s domain |
| 2 | Return after borrowing period ends | Any | Borrower exempt | No longer a borrower but a paid watchman |
| 3 | Borrowed/rented cow, disagreement about time of death | Mixed status | Burden of proof on claimant | If no proof, renter swears and is exempt |
| 3 | One claims death during borrowing, other during rental | Mixed status | Renter swears, is exempt | Swears according to his claim |
| 3 | Borrower cannot swear due to uncertainty | Mixed status | Borrower pays for both animals | Cannot swear with certainty |
| 4 | Multiple cows, some borrowed, some rented; unsure which died | Mixed status | Borrower pays for all borrowed cows he cannot swear about | Cannot swear due to uncertainty |
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