Shabbat Parashat Vaetchanan | 5769

Hemdat HaDaf HaYomi: Returning a Borrowed Object to a Family Member of the Owner

This week in the Daf Hayomi, the Gemara continues to deal with the laws of Shomrim (guardians over objects) and discusses in particular the laws of a borrower. The Mishna (98b) deals with the question of when exactly a borrowed object is considered to have been legally transferred to the borrower, thus obligating him to guard it. The Mishna rules that the borrower is responsible for the object from the moment it was given to him, or to a courier sent by the borrower. So too, when the object is being returned, the borrower’s responsibility ends the moment it is handed over to the lender or to a courier sent by the lender.

One of the examples in the Mishna of a courier is a son of the lender. The Rashba (responsa 2, 262) derives from the Mishna that if the lender did not appoint his son as a courier to bring him the object, the borrower is still responsible for the object even if he gave it to the lender’s son. The Rashba states that even if one returns the object to the owner's wife he is not yet exempt until he returns the object to the owner himself.

However, the Mordechai (Bava Metzia 272) appears to disagree with the Rashba. He quotes a responsa of the Maharam Mirutenburg exempting a shomer who returned the object to the owner's wife. It appears from that responsa, that even if the shomer would have returned the object to one of the owner's sons, this would have been sufficient as well.

The Rema (Darchei Moshe 340, 11; in the short version 340, 1) tries to resolve this seeming contradiction. He distinguishes between returning a borrowed object, and returning an object given for safekeeping. An object given for safekeeping may be returned to a close family member of the owner, but a borrowed object must be returned to the owner himself.

The Shach (72, 136) disagrees with the Rema. He claims that there is no difference between a borrowed object and one given for safekeeping, and in both cases the Rashba requires returning the object to the owner himself. However, if the owner's wife commonly conducts business with her husband's property, one may return objects to her. In our days, most women are considered to be commonly conducting business with their husband's property (Choshen Mishpat 62, 1), and thus one may return such objects to them.

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