Siman 292

Misappropriation that the Torah mentioned regarding bailees means that he performed an action with it to steal it, such as lifting the deposit from the place where it was resting or pulling it from this place to another place, and he intended by his lifting or by his pulling to steal it. Even if he intended only to steal a portion of the deposit, and even if he has not yet taken that portion, for we maintain that misappropriation does not require a loss; rather, once he pulled it or lifted it to take all of it or a portion of it, the entire deposit stands in his domain. Even if the deposit was later lost to an accident or died during the course of work, he is liable to pay the owners, for his own was lost or died and not that of the owners. This is what the Torah said regarding an unpaid bailee who must swear that he was not negligent, and a paid bailee that it was not stolen, "if he has not misappropriated the property of his fellow," for if he misappropriated it, in either case he must pay. And that which the Torah called it "misappropriation" is to tell you that even though he has not yet actually taken it in practice, but rather misappropriated the deposit through pulling or lifting with this intention, he is a robber. However, because of mere speech, where he said "I will misappropriate this deposit," and certainly in thought, this is nothing. And that which is written, "for every matter of transgression," the intention is not regarding speech of the transgression, for since it is written "if he has not misappropriated," we require actual misappropriation. And that which is written in a language of speech comes to include that even if he misappropriated it through his agent, where he sent an agent to misappropriate the deposit and the agent did so, the sender is liable, even though there is no agent for a matter of transgression, as will be explained. And certainly if he lifted it or pulled it to steal all of it, for in this it is not relevant to say that it did not lack anything, since it lacks everything and he is a complete robber. And even according to the one who maintains that misappropriation requires a loss, this is when intending to take a portion, where he must take that portion, and as long as he has not taken it, this is not misappropriation since the portion is still attached to the remainder of the deposit; but when intending to take all of it, what relevance is there to a loss? However, we maintain that misappropriation does not require a loss.

And there is a question regarding this, for if one took his fellow's object without his knowledge only to use it, even though he does not cause him any loss, he is a gazlan, as we maintain that a borrower without knowledge is a gazlan, as was written in siman 359. And if so, why did the Torah require regarding shelichut yad that he intend to steal all of it or part of it, when even with mere usage without any loss or intent of theft he is a gazlan and it stands in his domain? And there are those who said that this distinction is because on account of being a borrower without knowledge he is only liable when he uses it for that usage, and as long as he has not used it, even though he lifted it or pulled it in order to use it, he is not liable as a borrower without knowledge; but in shelichut yad, even though he has not yet taken that part, as has been explained. And this is the opinion of the Tur and the Shulchan Aruch, and it is also implied from the Rambam in chapter 3 of Gezeilah, see there.

And some have said that in truth it is one matter, but rather every gazlan among shomrim is called a "sholeiach yad," and this is the matter of shelichut yad according to what we establish that it does not require a loss. It is not only necessary to say that if he pulled it or lifted it to steal all of it or part of it that he is liable even though he did not take that part, but even if his intention was not to steal anything but rather to use it for his own use, he is like a gazlan, for a borrower without knowledge is a gazlan [the Me'or at the end of chapter HaMafkid and the Ritva in the name of the Ra'avad]. And some have raised an objection to this, for if so, according to the one who holds it requires a loss, he is not liable until he causes it a loss, and yet even a borrower without knowledge is a gazlan without any loss, and regarding this there is no one who disagrees. However, this too is well-settled, for certainly when he performed the act, whether he caused an actual loss or whether he used it without a loss, both are like gazlanim. And this one who holds it requires a loss meant the loss of the act in actual practice, whether the act is for actual theft or for use. And just as according to what we establish that it does not require a loss, the act of loss and of use is not required according to this view, so too for the one who holds it requires a loss, the loss of the act or of the use is required. And we establish that it does not require a loss; therefore, according to this opinion, when he pulled the deposit or lifted it, whether his intention was to actually steal all of it or part of it, or to use it, he is liable even if it was later lost through an ones [and according to this, that which is written in Bava Metzia 41a regarding one who moved it to bring fledglings etc. means that this too is a borrower without knowledge].

And some have written that not in every case of a deposit does borrowing without permission apply such that he would be considered a gazlan. Specifically, if he did not engage with the needs of the deposit at all, such as if one deposited a ladder with him and he took the ladder to stand it in some place for his own needs, he is a borrower without permission and his law is that of a gazlan. However, when he uses the deposit for the sake of the deposit, and in the same movement he also uses it for his own needs—such as if one deposited an animal with him and he led it to the field to graze it, and along the way he placed his burden upon it—it is found that he did not remove it from the owner's domain at all, for he led it to graze. A borrower without permission is so called when he removes it from the owner's domain from the place where the object was placed. But this one does not bear the name of a borrower without permission, but rather the name of shlichut yad, for he uses the deposit of his fellow. [the Ramban in the Milchamot ibid.]

And some have also written similarly in another manner, that any deposit which, when one makes use of it for some purpose, does not deteriorate at all—such as a ladder, as has been explained—certainly we do not require shlichut yad, and he is a sho'el shelo mada'at. But regarding deposits of living creatures, which weaken through their use, the status of sho'el shelo mada'at does not apply to this, but rather shlichut yad [Rashi ibid.], for sho'el shelo mada'at is not from the perspective of diminishing the object, for if so, he is a complete gazlan. Therefore, regarding an object that is diminished through use, there is only the status of shlichut yad upon it. Consequently, according to the one who holds that shlichut yad requires a deficiency, as long as he has not caused a deficiency, it is nothing. And one should not wonder that according to this, an object that has no deficiency in its use would be more stringent—in that the status of sho'el shelo mada'at immediately applies to it—than an object that has a deficiency in its use, which only has the status of shlichut yad and he is not liable unless he diminishes it; for this is not a wonder, as certainly regarding that which has a deficiency in its use, the status of sho'el shelo mada'at and the like does not belong. We find similar to this that a shomer chinam is more stringent than a shomer sachar regarding the payment of kefel in a claim of theft. However, for the halakha, we established that shlichut yad does not require a deficiency, and in any case he is liable [and the difficulty of the Gra and the Maharamal is settled].

And according to what has been explained, there is a practical legal difference between the opinion in section 2 and these three opinions; for according to the opinion in section 2, the liability for shlichut yad exists even though he has not yet committed shlichut yad, and immediately when he lifted it or pulled it in order to commit shlichut yad, he is liable for payment, whereas regarding a borrower without the owner's knowledge, the liability does not begin until the time of use; but according to these opinions, this distinction is not necessary:

This is the wording of the Tur and the Beit Yosef in section 1: A bailee is not permitted to commit misappropriation with the deposit, and if he committed misappropriation with it, even if he does not intend to steal it but only to use it, it stands in his domain and he is liable for accidental damages, even though he has not yet used it. For misappropriation does not require a loss, only that he lift it in order to use it for a use that causes it loss; then he is liable as if he caused it loss. But if he lifted it to perform a use that does not cause it loss, he is not liable from the time of lifting, but rather from the time of use, and not because of misappropriation—since he does not commit misappropriation with it as long as he does not cause it loss—but because he is a borrower without the owner's knowledge, who is like a thief. Thus far their words. And it appears to me regarding their opinion, of blessed memory, that any use that entails a loss through its use, such as animals, if he lifted it or pulled it in order to use it, there is in this a matter of misappropriation and he is liable even though he has not yet used it. And all the more so when he lifted it or pulled it to cause it an actual loss, such as if he lifted the barrel to take from it a revi'it of wine. But regarding a use that entails no loss, such as a ladder and the like, there is no matter of misappropriation in it when his desire was only to use it, and he is not liable until he uses it, and then because of being a borrower without the owner's knowledge. And this is like the opinion in section 5 [and so it appears from the Bach, and the difficulty of the Gra is answered].

And regarding what they wrote, that for use that does not diminish it one is not liable unless he used it, and his liability is due to being a borrower without knowledge, our teacher, the Rema, wrote that if he returned it to the place from which he took it, its status returns to being that of a guardian, since from the beginning he was only a mere borrower; and with money in such a case, he is liable for accidents, and see below section 6. Thus far his words. And the great later authorities rejected his words, for it is explicitly explained in the Gemara that regarding a borrower without knowledge, even if he returned it to its place, he is liable for accidents [Bava Metzia 41a]. And so it is written in the Shulchan Aruch section 6: One who deposits a barrel with his fellow, whether the owners designated a place for it or whether they did not designate a place for it, and he moved it for his own need and it broke, whether before he returned it to its place or after he returned it to the place they designated for it, he is liable to pay; and if he moved it for its own need, whether it broke while in his hand or whether it broke after he placed it in another location, he is exempt. Thus far his words. And from the source from which he took this law [Mordechai at the end of Bava Kamma], it is dealing with one who borrowed with the knowledge of the owners, or with a matter about which the owners are not particular [Shach and Taz]. However, one who examines the Hagahot Maimoni, chapter 4 of Geneivah, letter 2, will see that it is impossible to say so.

And it appears to me that the law is with our teacher, the Rema, for we establish that in the case of one who stole without the knowledge of the owners and returned it without their knowledge, he has fulfilled his obligation. It is only regarding a deposit where witnesses came that the watchman stole it that he does not fulfill his obligation by returning it without the knowledge of the owners, for the reason that since he stole it, he is removed from his guardianship, as the owners no longer trust him, as is written in siman 355. And they raised a difficulty regarding this: behold, when he returned it, he performed repentance, so why is he removed from his guardianship? And they answered that since there are witnesses, he returned it out of fear of the witnesses [there in the Sma, subsection 6]. According to this, regarding a borrower without knowledge, granted that he is like a gazlan, nevertheless, behold he returned it of his own accord and performed repentance, and his guardianship did not cease; consequently, he does not require the knowledge of the owners. And that which they said in the Shas that it is not effective, that is when there are witnesses. And so we shall say regarding what is written in section 6. Furthermore, the Tur wrote there: "and he laid a hand upon the barrel" [and so wrote the Levush], but regarding borrowing without knowledge, it is simple that when there are no witnesses, he is not removed from his guardianship. Furthermore, in most cases the prohibition is not revealed to all, and this is like what our sages, of blessed memory, said: "Do not covet" is understood by people to refer to taking without payment; and this is what our teacher, the Rema, was precise about, that he was only a mere borrower and his intention was not to commit robbery. And granted that his law is like a gazlan, but returning it is at least effective. But when witnesses warned him not to take it and he took it, in such a case certainly returning it is not effective, and it is with such a case that the Shas deals [and that which is asked there, "behold he took them," is well settled; and the Ritva asked what use is it, and according to what I wrote it is well settled, and also according to what the Shach himself wrote there it is well settled; and examine it].

It has already been explained in section 1 that shlichut yad, even if he has not yet stolen but merely lifted or pulled it in order to steal even a part of it, he is liable for the whole. However, when he has not lifted and has not pulled, he is not liable unless he stole. Therefore, if he tilted a deposited barrel and took a revit from it and afterwards it broke by accident, he is liable only for the revit, since he did not lift it and did not pull it, but merely tilted it. However, when it soured, he is liable for the whole, because due to his removing the revit from it, it soured; and this is regarding wine, which is prone to souring when it is diminished. But regarding other liquids, and certainly produce, when he committed shlichut yad in part of them and did not lift them and did not pull them, and they were afterwards spoiled, he is liable only according to what he took. But if he lifted or pulled in order to take a little, he is liable for the whole even when he did not take. Nevertheless, even in this there are those who have a doubt in the matter, for perhaps this law applies only to something that is like a single body, such as liquids or types of foods that stick together. But regarding a deposited pouch, where he lifted the pouch to take one dinar from it, or a barrel of produce that he lifted to take some produce from it, and the produce does not stick together, such as apples and pomegranates, the lifting to take a part does not make him liable for the whole. And this is the opinion of the Rambam, of blessed memory, in the third chapter of Gezeilah, that it is a legal doubt, and also in the Gemara [at the end of chapter HaMafkid] it remained as a teiku, and so wrote the Shulchan Aruch. Nevertheless, most of our teachers disagree with this and hold that the doubt in the Gemara was only according to the one who says that shlichut yad requires a loss, but according to that which we rule that it does not require a loss, there is no difference in this. And the Rambam holds that since the intent of his lifting was only to take a part of it and they are separate from one another, it can be said that this is as if he explicitly intended that his lifting should not be effective for the remainder; and shlichut yad is no better than a kinyan of a purchase, where when he explicitly intends not to acquire, it is not effective, as I wrote in siman 189 [and he holds that Rav Ashi there refers to the Mishnah and according to what we rule, and not according to the previous resolution].

It has already been explained that with a mere statement, where one says "I will lay a hand upon the deposit," he is not liable even if he said so before witnesses. And if he withheld the deposit due to a debt claim he has against the depositor, there is one who is uncertain regarding this, whether it is called "one who lays a hand" (sholeach yad) upon the deposit or not [Shach]. And it appears that if he laid a hand and took from it, he is liable even in such a case, for the poskim agreed that for shlichut yad one is liable even when his intention is to pay, and it is no less than a borrower without permission. And if so, even if we say that he had permission to withhold the deposit until he stands with him in beit din, nevertheless, who gave him permission to take from it? For perhaps even if the depositor would have been found liable in beit din, he would have paid him with money. And even if the deposit was money, nevertheless, he should not have spent it until he won the judgment. But when he did not take from it, even though he lifted it in order to take from it, since according to his own mind it is his in exchange for his debt, we should not make him liable because of his thought since he has not yet taken [and see Tosafot Bava Metzia 6a, s.v. safek].

One who misappropriates a deposit by means of his agent, behold he is a gazlan and becomes liable for accidental damages, for the Torah increased inclusion in this matter that his agent is like himself, as I wrote in section 1. And there is room to doubt if this is effective even by means of one who is not fit for agency, such as a minor or the like. And it appears to me that if the agent already misappropriated and took from it, the sender is liable even by means of one who is not fit for agency; but if this agent lifted it in order to take it and has not yet taken it, he does not become liable by his means [and proof is from Tosafot Me'ilah 21a, starting with the words "Netano," and examine it carefully]. And some say that the sender is not liable except when the agent did not know it was a deposit or if he is not subject to liability, but when he knew it was a deposit and he is subject to liability, the agent is liable and not the sender; and when the agent has nothing with which to pay, the sender is liable [Divrei Mishpat]. And there are those who disagree and hold that the agent is never liable unless he consumed the deposit, for then it is like a theft where the owners have not despaired and another came and consumed it, where if he wishes he collects from this one and if he wishes he collects from that one [Netivot HaMishpat], as I wrote in siman 361.

It has already been explained that when one moved the deposit for his own need, he is liable for accidents, and if he moved it for its own need, he is exempt. And if the moving was neither for his own need nor for its need, but rather that he required the place where the deposit was resting, this is not considered shlichut yad, for he did not intend to perform shlichut yad with the deposit itself. Therefore, he is exempt from accidents and liable for negligence. And if an accident subsequently occurred due to the change of location: if the depositor designated a place for it, he is liable even after he set it down, for it is a case of "its beginning was with negligence"—since he changed the place that the owners designated for it—"and its end was with an accident," and the accident came about because of the negligence, as was written in siman 291. But if they did not designate a place for it, he is exempt once he set it down, for he did not neglect at all by setting it in another place [this is the explanation of the Rema in section 6, and so wrote the Bach and the Taz; and what the Sma wrote in subsection 13 and the Shach in subsection 7 requires great study].

The Tur wrote: The law of one who misappropriates a deposit is like any other gazlan, who only pays according to its state at the time of payment; for if he misappropriated a shorn ewe and it grew wool or became pregnant while with him, and he sheared it or it gave birth, he only pays according to its state now. And so too regarding price fluctuations: if at the time he misappropriated it, it was worth four zuz, and at the time he removes it from the world it is worth one zuz—even though if it were physically present he could say to him, "Here is yours before you"—now that it is not physically present, he pays four zuz; it makes no difference whether he broke it by hand or it broke on its own. And if initially it was worth one zuz and at the time he removes it from the world it is worth four: if he broke it by hand, he pays four zuz, and if it broke on its own, he only pays one zuz. Thus far his words. And the reasons for this will be explained in siman 354 with the help of Heaven.

And they have already wondered about him regarding what he wrote, that he pays according to the value at the time of payment, for it is established for us that he pays according to the value at the time of the theft, which is at the time of the shlichut yad. According to this, the law regarding improvement is not as he wrote; rather, if he performed shlichut yad on a pregnant cow and it gave birth, or on a laden ewe and he sheared it, he pays the value of a cow standing to give birth and the value of a ewe standing to be sheared. And if he performed shlichut yad on an empty cow and it became pregnant while with him, or on an empty ewe and it became laden while with him, even if it had not yet given birth or been sheared, he only pays the value of an empty cow or ewe. Not only that, but even when they were laden at the time of the shlichut yad, and he was sued at the time they were laden when it had not yet given birth or been sheared, the improvement they improved from the time of the shlichut yad is also his, according to the law of a thief in siman 354 and according to the law of a gazlan in siman 362.

It appears to me that the Tur wrote this according to the opinion of the Rambam in the second chapter of Laws of Robbery, that a robber does not acquire the appreciation that occurs before despair, but only that which occurs after despair. Regarding misappropriation, despair is not applicable, for the depositor does not know of his misappropriation and does not despair. The Tur wrote in siman 354 that birth and shearing are considered a change, and he acquires through this. According to this, it must be said that what they said in the Gemara [Bava Metzia 43b] regarding misappropriation, that the practical difference is regarding the appreciation of shearing and birth, it must be specifically when he sheared it or it gave birth, for if not so, he does not acquire appreciation that is before despair. According to this, the payments are not like the time of the misappropriation, and this is what the Tur calls "as it is at the time of payments," meaning when it is empty, as he explains. And what he wrote regarding one that is laden and he sheared it, that he pays like it is now, he means to say that he pays him for the ewe without the shearings and the animal without the offspring. Nevertheless, an assessment is required for what it was worth more because of the fetus and the wool that was upon it previously, and he completes this assessment for him, but he acquired them through change.

Even though it is forbidden to use a deposit, nevertheless, regarding money there is a different law, and therefore the law of their safeguarding also changes; for when he uses them, he is liable even for accidents. And even when he has not yet used them and he is an unpaid guardian, nevertheless, his law is like a paid guardian, for the permission to use them is like a fee for safeguarding. However, it is not always permitted to use them, nor for every person. And thus our sages, of blessed memory, said [ibid.] that if the bailee is a money-changer or a shopkeeper, if the money is not sealed and not tied with an unusual knot that would make it evident that it is not the depositor's will that the bailee use them—even though they are bundled as a person bundles his money in his pouch—he is permitted to use them. For the depositor knows that they always need money and he suffers no loss by their use, and since he did not tie them and seal them, he is not particular about their use, and he becomes immediately a paid guardian and is liable for theft and loss. And when he uses them, he is like a borrower and is liable for accidents, and he is liable even if the coin was invalidated to pay with a coin that is current at that time, for his law is like a borrower [Sma/Shach], and even if he only spent a perutah, he is liable for all of them [Netivot HaMishpat]. And he is liable even after he returned them to their place until he returns them to their owners. And regarding money, there is no distinction between these and those, and he can pay him with other money even when his original money is still in existence [ibid.], and many disagree on this, and such is the primary ruling. But before use, his law is not like a borrower; even though regarding a lost object his law is like a borrower even before use, nevertheless, regarding a deposit where it is possible that the depositor will come immediately to ask for his deposit, his law is not like a borrower until he uses them, as I wrote in siman 267. And if they are bundled and sealed or tied with an unusual knot, he may not use them; therefore, if they were lost or stolen, he is not liable for their responsibility, for he is only an unpaid guardian unless he takes a fee for safeguarding.

And if they were deposited with a homeowner, even if they are permitted, he shall not use them; therefore, if they were lost or stolen, he is not liable for their responsibility, provided that he hides them in a guarded place as has been explained in siman 291. A homeowner whose primary business is with interest has the legal status of a shopkeeper or a moneychanger, because he always needs coins. The poskim wrote that nowadays every homeowner has the legal status of a moneychanger, for in the time of the Gemara their business was with land and they did not need coins, but now that we do not have land and all our business is in trade, the depositor knows that he will use it. There is no distinction between a place where merchants are common and where they are not common, and similarly there is no distinction between a poor person and a rich person. All this applies to actual coins, but regarding a bar of silver, no. However, everything is according to the matter.

If the bailee transacted with the money of the deposit and profited from them, if he revealed his intent that he engaged in business for the sake of the depositor, the depositor takes the profit, and this is not like ribbit because the money did not come into his hand as a loan. And that which requires a revelation of intent is in a case where the bailee is permitted to use them, but when it is forbidden to use them, such as if they were bundled and sealed or if he explicitly stipulated that he would not use them, even if he engaged in business without specification, the profit belongs to the owner of the deposit, and we say that presumably he engaged in business for the sake of the depositor. And he is not believed to say "I engaged in business for myself and the profit is mine," for he is not believed to say that he committed a prohibition, and presumably he acted permissibly, unless he says before witnesses "I shall engage in business for myself." And if he said so before witnesses, or if he had permission to use them and engaged in business without specification, he does not need to give from the profit to the owner of the deposit. And there is one who says that even though he did not have permission to use them and engaged in business without specification, the profit is for himself, unless he revealed his intent that he engaged in business for the sake of the depositor or there is proof for this, such as if he gave him one time what he profited from the deposit. And the primary view is like the first opinion [Taz], for we should not assume that he acted with a prohibition as long as he does not explicitly say so.

One should not wonder, in a case where it is forbidden to use the money, why the profit belongs to himself when he stated that he is acting for himself, for the money belongs to the depositor and it would be proper for the profit to belong to the depositor, as in the case of an agent in siman 183. However, in truth, it is not comparable to there; for regarding an agent whom he sent to do business, his agent is like himself, and if he loses, the loss belongs to the sender, and he cannot do business with the money of his sender for himself. But regarding a deposit, the depositor did not command him to do business with them, and if he loses, he loses for himself; therefore, the profit is also his when he says he is acting for himself. And even though he committed a prohibition, nevertheless, what he has done is done. And greater than this we say in the Yerushalmi of Bava Metzia [chapter 5, halacha 3], that one who causes the pocket of his fellow to be idle—for example, he gave him money to buy wheat and he sat and did not buy—even though the sender lost the profit through this, he is exempt from paying, and this is only like a grama. And all the more so in this case, where he did not cause damage to the depositor, for he did not command him to do business with them on his behalf. And furthermore, it is stated there that one who causes the land of his fellow to be idle is liable to pay, and they explained the reason is because the loss is certain and it is like garmi; but one who causes the shop or the ship of his fellow to be idle remains in doubt, and the SeMag [Positive Commandment 82] ruled leniently that he is exempt. But if the loss is certain, he is liable to pay. And according to this, also regarding money, when the loss is certain, he is also liable to pay, for it is like garmi [however, from the Nimukei Yosef, chapter 9 of Bava Metzia, it is explained that the liability for land is because of the custom, see there; but from the Ritva it is implied as I have written, and that which the Pnei Moshe questioned there is settled, and examine carefully].

Our teacher, the Rema, wrote: However, if the owner of the deposit came and said, "Give me my deposit and I will profit with them for myself," and the other person withholds it from him, he is obligated to give him the profit from that point forward. Thus far his words. And there is one who says that even in such a case where he withheld it and did not give him the money, he is exempt, for this is nothing more than one who causes his fellow's purse to be idle. But it appears to me like the words of our teacher, the Rema, for in the Yerushalmi they only said this when he also did not profit; but when he did profit, and this one claimed from him, "Give to me and I will profit with them," he is obligated for the future, for this is not merely gerama but rather like garmi since he profited with them, and it is no worse than a field for which one is obligated when he caused it to be idle. And so it appears from the words of the Gaon brought by the Mordechai [the ninth chapter of Bava Kamma], see there. Furthermore, it is possible that the primary law of one who causes a purse to be idle applies only to the past and not to the future when he claimed it from him, even if he did not profit with them. And if this person who gave to his agent to buy wheat for him and he did not buy it, and he came to him and said to him, "Give me my money and I will buy wheat," and he did not give it to him, it is possible that he is obligated when the profit was certain, and so appears to be the primary view. And know that all of this is when he did not intend to steal, but if he intended to steal, the profit is his and he has the law of a gazlan who pays according to the time of the theft [Netivot HaMishpat].

And even though at the end of siman 81 it was explained regarding a loan that when he said to the lender, "I will give you profit," this is nothing more than mere words and he may retract, why then regarding a deposit is he obligated to give him the profit from this point forward? However, in truth, even regarding a loan, if the time for payment arrived and he demanded it, he must give him the profit, for it is like a deposit [there in the Sma]. And some say that regarding a loan, even if the time for payment arrived and he demanded it and he did not give it, the profit belongs to himself; for since it was given to be spent, even though the time for payment arrived and this one is withholding it, he does not commit a prohibition in this. But regarding a deposit, even when it is permitted to use them, nevertheless when the depositor comes to request his money, he is obligated to give it to him immediately [Taz]. And it appears that the primary view is like the first opinion, for even regarding a debt, when the time for payment arrives, he is obligated to give it to him when he has it, and it is similar to a deposit; and only when he does not have it, in that case it is not similar to a deposit.

When the depositor comes to request his money and the depositary says to him, "I spent them in a business venture; if you wish, accept the venture upon yourself, whether for profit or for loss," and this one says to him, "I do not want the venture, give me my money"—if he had permission to use them, the law is with the depositary. But if he conducted business in a prohibited manner, the law is with the depositor. And there are those who disagree and hold that even if he conducted business in a permitted manner, nevertheless, it is a deposit, and at any time that he comes to request his money, he is obligated to give it to him [the Gra].

One who deposits money or important vessels with his fellow, and thieves came upon him and he went ahead and gave them the deposit to save himself: if the bailee is a wealthy man who possesses money, he is liable to pay the depositor, for there is a presumption that the thieves came because of him and not because of the deposit, and it turns out that he saved himself with the money of his fellow and is liable to pay. This is specifically when it was not within the power of the thieves to seize the deposit if he had not given it to them, such as if it was hidden in another place; but if it was within the power of the thieves to seize it, he is exempt [Shach]. And if he is not wealthy, he is exempt in any case, for there is a presumption that the thieves only came due to the report of the deposit. Therefore, even if they could not have seized it if he had not given it to them, he is exempt, for what was he to do? Did they not coerce him to give it? And he is not obligated to give of his own since they came for the sake of the deposit. And even though we hold that when extortionists coerce one to bring the money of his fellow and he brought it with his hands that he is liable to pay, as written in siman 388, a deposit is different; for with this understanding he accepted the guardianship: that if thieves come for the sake of the deposit, he shall not give of his own, for it is not logical that he should guard that of his fellow to his own detriment. But in a case where they coerced him, it is from Heaven that they decreed upon him, for the other person was not the cause of this [ibid.]. And although there is one who disagrees and holds that a deposit is similar to a case where they coerced him, nevertheless, this is the primary ruling. Furthermore, in a case where they coerced him, some say he is exempt from paying, as will be explained there with the help of Heaven.

If money for the redemption of captives was deposited with him and extortionists came upon him and he gave it to them to save himself, if his own money was not available to him there to redeem himself, even if he has money in another place, he is exempt. For at the time of the act, he was forced to give them this money, and he is not obligated to pay it back afterwards, as this is money for the redemption of captives and he redeemed himself with it. This is like one who travels on the road and has nothing to eat, for it is permitted to receive tzedakah and he is exempt from paying it back afterwards even if he is wealthy in his home, as is written in Yoreh Deah siman 253 [Sma]. And specifically when the money was for the general redemption of captives, but if it was for specific captives, he is obligated to pay, for those captives already acquired it and it is like theirs, and he is not permitted to save himself with his fellow's money. And so too if the money belongs to other types of tzedakah or sanctified property, he is obligated to pay:

One who deposits produce with his fellow, behold, he may not mix them with his own produce, for then even if they decrease by any amount, he may say to him, "Behold, yours is before you." And if he transgressed and mixed them with his own produce, and afterwards a deficiency was found in the total, the deficiency shall be calculated according to the proportion. How so? If the deposit is ten se'in and he mixed them with ten se'in of his own, he shall calculate half the deficiency; and if the deposit was a third of his own, he shall calculate a third of the deficiency against the deposit, and so always. And this is specifically when they decreased by the amount that is common to decrease, but when they decreased more than the accustomed amount, the bailee shall swear that he was not negligent in their guarding. And if it is not his desire to swear and he accepts upon himself that which decreased more than the accustomed amount, the law is with him [Taz].

And so too, if he gave him money to transport them under the responsibility of the depositor, and he placed them with his own money, and a portion of the money was lost due to an unavoidable accident, the loss is according to the ratio of the money. However, if he gave him gold rings or other objects to transport and he mixed them with his own, and one of them was lost, the one in possession can say, "Yours was lost and mine remains." But regarding money, where there is no concern regarding their mixture, as these coins are the same as those, and similarly with fruits and produce of equal quality where there is no concern, it is not applicable to say "yours was lost," because they are all like one thing and the loss is according to the calculation. Therefore, regarding money and fruits, it is not applicable to say that the bailee is obligated to swear whether his friend's portion is also missing or not, and since he cannot swear, as he does not know, and because he cannot swear he must pay; for since this is like one thing, it is as if he knows that it was lost according to the ratio. And similarly, we do not follow the majority to say that it was lost from the majority [see Shach], since it is like one thing and we calculate according to the ratio. And this is specifically when the money was in one pouch and the fruits in one sack or in one chest or one room without a separation of space; but when the money of each was in a separate pouch or a separate sack, but the pouches and sacks became mixed and are not recognizable, this is not like one piece and their law is like objects [ibid.]. And that which we said, that regarding objects the one in possession can say "yours was lost," even if his own were the majority, nevertheless he can say so, for in monetary matters we do not follow the majority when he is in possession [ibid.]. And one should not say, on the contrary, since he is a bailee and is obligated in the oath of bailees that the bailee's portion was lost and he cannot swear to this and should be obligated to pay; for it is not so, because since he swears or brings witnesses that it was lost from the collective, he has fulfilled the oath of bailees, and then since he is in possession, he can say "yours was lost" [ibid.].

Two who deposited money with one person not under the responsibility of the bailee, and they deposited it in one pouch [Shach], and a portion was lost or stolen, the loss is proportional. And if they deposited in two pouches or deposited objects, we follow the majority, since neither of them is in possession, and "whatever separates, separates from the majority." Therefore, if one had ten and the second had five, and five were lost, the owner of the five suffers no loss at all. And even if the bailee also had a large sum and he suffers no damage at all because he is in possession, nevertheless, regarding the depositors, the owner of the larger amount suffers the damage [ibid.]. And specifically when it separated on its own do we say "it separates from the majority," but when a person took it, we hold that anything fixed in its place is considered as half-and-half, as is written in Yoreh Deah in siman 110. Therefore, regarding theft, you only find this with animals that wandered on their own from their place and were stolen, for then we follow the majority; but regarding money and movable goods, since the thief took them in their place, it is considered "fixed" and the loss belongs to both of them [Levush]. And there is one who says that if the thief was a gentile, since he is not subject to the law of returning the object as is written in the laws of theft, it is considered as "separated" and "separates from the majority" [Shach]. And there is one who disagrees with the primary ruling we wrote that "it separates from the majority," for this applies if we were coming to judge the separated items as in matters of forbidden foods, but here we are judging those remaining in their place, and they are "fixed" and considered as half-and-half. And the first opinion holds that since the remaining items depend on the reason of the separated items—as to whose were lost—the primary ruling is based on the separated items. However, in the Yerushalmi in Bava Kamma chapter 4, it is stated that the loss is proportional. And it seems to me that the reason is because it is impossible to follow the "fixedness" of the remaining items since the reason depends on the lost items, and it is impossible to follow the lost items and follow the majority because we are coming to judge the remaining items; therefore, it is proportional. And one cannot say that the Yerushalmi is dealing with a case where they were in one pouch, for it says there that each one takes according to his pouch. And if they gave it to him in two pouches and he mixed them into one pouch and a portion was lost or stolen, he pays both of them, for he was negligent in mixing them without their permission [Netivot HaMishpat; and that which he questioned from the second chapter of Maaser Sheni can be resolved]. This is the wording of the Yerushalmi: What did you see to say regarding theft? Are we dealing with the [stolen items] or are we not dealing rather with the remaining items? And this is its explanation: that it asks why the law is so, and answers because we do not know whether to calculate according to the theft and follow the majority, or to follow the remaining items and it would be "fixed"; therefore, we judge proportionally. And it concludes that there is no logic to follow the majority, lest the attribute of justice be stricken, and according to the remaining items certainly one should not follow. And it should say there "and if you say," and the Meforesh and the Netivot HaMishpat were pressed in its explanation.

And if he mixed produce of a deposit with his own produce and took from the whole for the needs of his household, and he did not take by measurement, and consequently it is unknown how much was the loss that was fit to be diminished, he shall calculate for him the losses according to what is usual to be diminished from such produce. And thus the sages said: if they were wheat or peeled rice, he shall calculate for him four and a half kavs for every kor; and for barley and millet, nine kavs per kor; and for spelt, flaxseed in the stalks, and unpeeled rice, three se'ahs for every kor; and according to this measure for every year. In what case does this apply? When he measured the deposit for him during the threshing season and returned it to him during the threshing season. But if he measured it for him during the threshing season and returned it to him during the rainy season, he shall not calculate for him losses at all, because they increase due to the moisture and the measure is filled to the amount of the loss. And so our sages, of blessed memory, said that he deducts for him a sixth for wine, because they would keep the wine in earthenware jars and much was absorbed into the jars; and three login of oil for every hundred login—a log and a half for dregs and a log and a half for the absorption of the jars, for oil does not absorb like wine. And if it was refined oil, he does not deduct dregs for him; and if the jars were old, he does not deduct the absorption for him. And wine is absorbed even by an old vessel [Tosafot Bava Metzia 40b]. And all these matters depend on the times and on the places and according to the custom of the merchants.

One who deposits unmeasured produce with his fellow, and the depositary mixed them with his own produce and did not measure them, behold, he is negligent. Therefore, when the owner of the deposit comes to seek his deposit and says, "There was such and such an amount," and the watchman says, "I do not know," he pays without an oath; for the watchman has obligated himself in payment and does not know how much, and his law is like one who is obligated to swear and is unable to swear, who pays. He only has the right to impose an acceptance of a ban upon anyone who takes from him more than the deposit, as written in siman 298, and there it will be further explained regarding this.

One who deposits produce with his fellow and he did not mix them with his own produce, even though he sees that they are lacking and continually diminishing, he may not touch them, because a person desires his own produce more even though they have diminished [Bava Metzia 38a, and see there in the Rosh]. In what case are these matters stated? When they diminished by a loss appropriate for them, as has been explained; and even if they diminished over the course of a month the loss appropriate for a year, nevertheless he shall wait, perhaps he will come. But if they diminished more than the loss for a year, if the depositor is in the city, he shall inform him, and if not, he sells them in beit din. And anyone who sells a deposit by the authority of beit din, he sells to others and shall not purchase it for himself because of suspicion, as in the case of a guardian in siman 290. And the money shall be left with him, and he has permission to use it; therefore, he is a shomer sachar over the money even when he has not yet used it, and when he has used it, he is a shoel and is liable for accidents.

One who deposits produce with his fellow and it rotted, honey and it spoiled, or wine and it soured, even though they will not deteriorate further, nevertheless he provides a remedy for the owner of the deposit when he is not in the city and sells them in beit din, for the baskets and the jugs add to the loss. And one who deposits chametz with his fellow and Pesach arrived, behold, he shall not touch it until the fifth hour on Erev Pesach, for it is still permitted to sell it, as perhaps the owners will come. And if by the fifth hour the owners have not come, he goes out and sells it in the market for the sake of returning a lost object to the owners. And this too must be sold according to the appraisal of a beit din even though the time is urgent [Tosafot Pesachim 13a]. And if the time is pressed such that it is impossible to sell at that hour, he shall sell it earlier [Magen Avraham siman 443]. And according to our custom, he sells them on Erev Pesach to a non-Jew through a beit din according to the custom:

And the same law applies to movable deposits where the bailee sees that they are beginning to spoil, and if he waits they will spoil further, he sells them based on an assessment of a beit din to others and not to himself. And if they are not spoiling, he shall not touch them due to a concern of price depreciation, and even though he knows for certain that they will depreciate at a certain time or that extortionists will seize them, for perhaps until that time the owners will come and take them. But when the time of the depreciation or the extortion arrives, he shall hasten to sell and save the property of his fellow [Sma].

One who deposits a Sefer Torah with his fellow, he rolls it once every twelve months. And even though regarding a lost object he rolls it once every thirty days, as I wrote in siman 267, nevertheless, regarding a depositor who deposited it with intent and did not tell him to roll it every month, it is sufficient that he rolls it once every twelve months. And some say that even regarding a deposit, the law is like a lost object [Tur]. And if at the time of its rolling he opens it and reads from it, it is permitted; but he may not open it for his own sake and read. And the same applies to other books. And in siman 267 several details regarding this were explained. And if he opened and read for his own sake, he has committed shlichut yad with the deposit and becomes liable for accidents. And just as it is forbidden to read from it, so too it is forbidden to copy from it even a single letter, for by his copying he is using it. And this is specifically when the bailee is not a talmid chacham; but when he is a talmid chacham and does not have such a book, it is permitted to read and copy from it, for certainly with this understanding he deposited it with him, like money with a money changer where he knows he will use them. And in a place of bitul Torah where books are not found, the beit din can compel one who has books to lend them for learning in them and to pay him for what they become damaged. And similarly, it is permitted for this reason to copy a book even though the owners are fastidious, and it is written: "They do not despise a thief if he steals"—this refers to one who steals words of Torah and copies them [Midrash Mishlei and Tosefta Bava Kamma chapter 7], for in a case like this we compel regarding the conduct of Sodom. And in our days when books are common through printing, this is not applicable. Nevertheless, a poor talmid chacham who has nothing with which to learn and the owner of the book does not want to lend him his books, his sin is too great to bear, and the beit din can compel him to lend it, and even in this time there is the law of a talmid chacham regarding this.

One who deposits a garment with his fellow, he shakes it in the manner that was explained regarding a lost object in siman 267. In what case are these matters stated? Regarding a deposit whose owner went to a country overseas; but if he was with him in that same city or near it, behold, he shall not touch it even if it will be lost, for he should come and shake it himself. And so the law appears regarding a Sefer Torah and books. And specifically regarding a deposit, but regarding a mashkon, the lender is obligated to shake the garment himself, for the borrower is not able to come to the house of the lender and shake it, as the lender would object to him. And also regarding a deposit with a shomer sachar, it appears to me that the shomer is obligated to shake it [and as for why it did not answer in Bava Metzia 30a that it deals with a shomer sachar, it is because it teaches it similar to a lost object].