Siman 120

One who borrows money from his fellow, it is under his responsibility until he pays it into the hand of the lender or his agent. And if he paid his wife, if she is of sound mind and conducts business within the house, the borrower is exempt thereby as if he gave it to the lender himself. And there are those who disagree on this [Shach], for specifically regarding a deposit is he exempt, as will be explained in siman 291, but regarding a loan where all the benefit belongs to the borrower, he is not exempt thereby until he returns it to his hand or to his agent, as with a borrower (shoel) which will be explained in siman 340. And it appears to me that regarding a loan where benefit also reaches the lender, such as with a shetar iska and the like, even according to this opinion he is exempt when he delivered it to the wife of the lender who conducts business in the affairs of her husband. And it seems to me that the custom now is that they return all types of loans to the wife of the lender when she is occupied with the business of her husband, unless it is known that the husband is quarreling with her or that he suspects her of concealing from him, for then according to all opinions he is not exempt by returning it to her, even a deposit. However, ab initio (l'chatchila) one must certainly always return only into the hand of the lender or his agent. And if he returned it to the son of the lender, he is certainly not exempt even if the son is supported at his father's table and he is an adult, unless the son is together with his father in the business, for then his hand is like the hand of his father. And so too if the lender has an appointee over his business and it is known that the appointee gives the money of the master of the house and takes his money, he is permitted even ab initio to deliver it to him [it appears to me].

And it is not specifically into the hand of the lender, but even if he placed the money before the lender in his house or in his courtyard, and even if he threw them into his domain before him, since the lender saw, he is exempt through this. But if he threw them before him in a public domain [Rashi, Gittin 78a], even if he threw them close to the lender and the money was lost, the borrower is liable. And even if the lender said to him, "Throw me my debt," and he threw it, and before the lender received them into his hand they were lost, the borrower is liable even for accidents; for presumably, since the lender is not standing in his own domain, when he said to him "throw," his intention was that he should throw them and guard them until he receives them. But if he said to him, "Throw me my debt and be exempt," and he threw them, even if the money is far from the lender and was lost before it reached his hand, he is exempt, for he authorized him in this. And if he specified to him, "Throw to me to a place where I may guard them," he must throw so that they are close to the lender in a manner that it will be within his ability to guard them [Bach]. And any domain that does not belong to the lender, such as an alleyway or the sides of a public domain or a courtyard that is not his, its law is like a public domain [it appears to me]. And so too if he said to him, "Throw into a river" or to another place of loss, he must say to him "and be exempt," and without this the borrower is liable. But if he said to him, "Give to a deaf-mute, an idiot, or a minor, or to a gentile," he does not need to say "and be exempt" [Netivot HaMishpat], for this is not a place of loss such that we would say his intention was that the loss should be at the borrower's expense. And there is no difference in all of this between a debt with a contract and an oral debt [Sha'ar Mishpat].

In Even HaEzer siman 139, several laws were explained regarding the throwing of a get and in what manner she is divorced. Therefore, if he said, "Throw me my debt in the manner of gittin," all the laws that exist there regarding a get apply to this. And in any case where she is divorced according to the law, the borrower is exempt through this throwing. How so? If the money was closer to the borrower than to the lender, it is still under his responsibility. If it was closer to the lender than to the borrower, the borrower is exempt. Half and half, it is in the domain of both of them, and if they were lost from there or stolen, the borrower pays half. And according to some there, if he threw it within the four amot of the lender, he is exempt, for the rabbis instituted for every person four amot in a side-alley or on the sides of a public domain, and regarding a get they instituted four amot even in a public domain. And since he said "in the manner of gittin," he is exempt even in a public domain if they were within his four amot [Urim VeTummim]. And if he threw it outside of the four amot, if the lender is able to guard the money and the borrower is not, the borrower is exempt. And if the borrower is able to guard them and the lender is not, the borrower is liable if they were lost, for they are in his domain. And if both of them are able to guard—whether each one is able to guard or whether each one alone is unable to guard but only both of them together—it is like half and half, and if they were lost, the borrower pays half. And if even both of them together are unable to guard, it is like one who throws into a place of loss, and the borrower is liable if they were lost. And in the courtyard of another, the four amot do not belong to him, as will be explained in siman 243. And even in a place where there is an acquisition of four amot, if the counterpart preceded him in these four amot—for example, if the borrower stood within these four amot and the lender afterwards came to this place and he threw it to him within these four amot—they are in the domain of the borrower since he preceded him, as is written in Even HaEzer there regarding a get; see there.

It has already been explained in siman 74 that the borrower has the ability to return the loan to the lender, and even when the lender does not wish to receive them, he can return them to him against his will, see there. Therefore, that which was explained—that when he threw them and they were lost, the borrower is liable—this is specifically when the lender did not reveal his intent that he does not wish to receive them. Therefore, the borrower is liable because the lender can say to him, "Had you given them to me, I would have guarded them." But if the borrower said to him, "Here are your coins," and he did not wish to receive them, and he threw them before him, and it is a place where a loan is repaid there, according to what was written there, the borrower is exempt and does not need to bring the coins to beit din, for repayment against his will is considered repayment. And when they were lost, the lender himself was negligent. And so too, if he said to him, "Here are your coins," and he did not wish to receive them, and the borrower said to him, "What shall I do for you? Behold, your coins are bound in my house; come and take your coins," and the lender refuses to take them, and they were stolen or lost, the borrower is exempt unless he was negligent with them and through the negligence they were stolen or lost, for in any event he has the status of a shomer chinam. And if he said to him explicitly that it is not his will to guard them, he is exempt even from negligence [Sma]. And some say that even if he did not say that it is not his will to guard them, he is exempt even from negligence, for what is there for him to do since he does not wish to receive them [and so it appears from the Mordechai, chapter 7 of Gittin]. And such is the primary ruling [Shach]. And the general rule of the matter is that even though throwing them does not exempt him, and similarly when saying "come and take your coins" his guardianship over them was not removed, and so he should have been at least a shomer chinam like a borrower after the time of his borrowing who has the status of a shomer sachar as written in siman 343, nevertheless, since he requested of him to receive his coins and he did not wish to, what more was there for him to do? And he was forced to throw them or to bind them and leave them in his house, and the lender was negligent himself. And since he said to him afterward, "Behold your coins are bound, come and take," he is exempt; which is not the case in siman 74, section 5, when he did not say so to him, he is liable, see there [Shach, and this is the intent of the Sma, for otherwise there is no distinction, and the Shach made it into its own resolution, and examine this]. However, when he says so to him, he may no longer use the coins [ibid.].

Our teacher, the Rema, wrote: Reuven was indebted to Shimon, and when the time for repayment arrived, Shimon said to him that he should trade with them for half-profit, and they were subsequently lost to an oness in the hand of the borrower; he is liable for all onessin as at the beginning, since they were initially under his responsibility and it did not change by virtue of mere speech. Thus far his words. And it is from the Mordechai at the end of the chapter "HaChovel," and he brought proof from what they said there: that when it came into his hand under the category of safeguarding and afterward he said to him, "Tear this garment," he is liable unless he said to him, "On condition of being exempt." And I wonder what proof is there from there? For there the reason is because it was mere idle words and he was mocking him [Tosafot and Nimukei Yosef ibid.], and his intention was that he should pay him, as will be explained in siman 380, see there [ibid. in the Sma]. And what similarity is there to this law? [And his proof from the end of the chapter "HaPoalim" is also puzzling, for there the reason is because he stipulates against what is written in the Torah]. And why should his law not change by his speech, such that half of it becomes a pikadon? For does not a borrower, when his safeguarding ends, change from the law of a borrower to a shomer sachar even without speech? And so too, according to the first opinion in the previous section, he changes to a shomer chinam, and many such cases. And in my humble opinion, it requires further study if he is liable for onessin on the half that is a pikadon. And even according to the words of our teacher, the Rema, if he said to him, "Let the money be with you under the category of iska," it is as if he said to him, "And be exempt on the half that is a pikadon" [Ktzot HaChoshen; and I found for the Netivot HaMishpat in siman 344 who stood upon this, and his words are not clear to me, and it requires further study].