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Shabbat Yom Kippur 5774

P'ninat Mishpat: Returning an Object to the Owners Family Members

(based around Shut HaRashba II:262)

Reuven borrowed an object from Shimon, and when Reuven went to his house to return it, Shimon was not there, so Reuven left it with his wife or his dependent children. As it happened, the object was lost or stolen before Shimon found out that it had been returned.

The mishna (Bava Metzia 98b) says that if a borrower sends the borrowed object back to the owner even with the owner’s children or servants, it is still the borrower’s responsibility. We see then that returning the object to members of the owner’s household is not like returning it to the owner himself. The rationale is along the lines of Rabbi Elazar’s statement (Bava Kama 57a): all cases of returning must be with the owner’s knowledge, except returning a lost item, where the Torah indicates that there are multiple ways of returning it.

 

[There are several new ideas in this short ruling of the Rashba. For one, the mishna in Bava Metzia is talking about returning the item to a member of the household outside the domain of the owner, in which case it is not considered having been returned to the owner. When it is put in his house, where it is objectively returned, except for in regard to the owner’s awareness, one could have argued that the knowledge of a responsible member of his household would suffice.

The Beit Yosef (Choshen Mishpat 340:8) mentions this statement of the Rashba and while he does not codify it in the Shulchan Aruch, the Rama (CM 340:8) does, and it is likely that the Shulchan Aruch agrees. The S’ma (340:12) is troubled by the following, which is likely related to our aforementioned comment. There is a rule that when one gives something to a homeowner to be watched without stipulation, he should assume that the members of the household will be handling and assume responsibility for it as well. The S’ma reasons that just as the one who gave an object for watching cannot complain when household members watch it, so too the owner cannot complain that returning it to household members is not like giving it to him. The S’ma claims that the Rashba’s statement is true only regarding a sho’el (a borrower), who has extra obligations because he is the recipient of a favor. (The Rashba’s stated reason does not seem in line with that distinction.)

The Netivot Hamishpat (340:13) cites the S’ma and suggests the following distinction. When a wife is involved in her husband’s business transactions, then giving something to her is equivalent to giving it to her husband in regard to everything, including when a borrower returns an object or pays back a loan. In the case of a wife who is generally trusted by her husband but is not involved in his business, the S’ma’s distinction between borrowers and other watchmen of the owner’s property is correct.

Presumably, the assumption of which wife has what status is dependent on various subjective matters, including but not limited to the norms of the time and place and whether the object is of a household nature or a commercial nature.]
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