Siman 293

A depositor cannot claim the deposit except in the location where he deposited it there; for if he deposited it with him in Tiberias, he cannot claim it from him in Sepphoris. And it is not necessary to state regarding a deposit of an object when he does not have that object in Sepphoris, that it is not relevant at all that he should claim it there, even if he says to him, "Send for the deposit to Tiberias at my expense to bring it here." Rather, even if he deposited money with him, and the bailee has money in Sepphoris that he does not need—where in such a case regarding a loan he could request it from him in Sepphoris, as written at the beginning of siman 74—nevertheless, regarding a deposit, he cannot compel him to pay him in Sepphoris. Even though there is no difference in money between these and those, it is specifically a loan, which was given for expenditure, where it is not relevant for the borrower to say, "Come with me to Tiberias and I will pay you those same coins that you lent me," for behold, even those coins belong to the borrower. But regarding a deposit, he can say, "It is not my will to hand over to you except those same coins that you deposited with me." [This is the intention of the Rosh, chapter 10 of Bava Kamma, siman 31, and the difficulty of the Gidulei Terumah brought by the Shach is resolved].

But if the deposit itself is in Tzippori, he can claim it from him so that he returns it there. And similarly, he can claim it from him in Tiberias; even though the bailee left it in Tzippori, nevertheless, since he deposited it in Tiberias, the bailee is obligated to bring it from Tzippori. And similarly, the bailee can return the deposit to the depositor in any place he desires, and the depositor must accept it from him and cannot say, "I will not accept it from you except in the place where I deposited it with you." And regarding money, he can return other money to him, for there is no difference in money between these and those; however, if there is a difference, their law is like objects. And even if the depositor did not accept the deposit willingly, but rather the bailee forced him and gave it to him, it is considered a giving and he is exempt. And if he deposited it with him for a known time, he cannot compel him to accept it from him within the time in any place. And it has already been explained in siman 291, section 19, that there are those who disagree on this, see there. And even without a fixed time, this is specifically when he gives him the deposit here; but if the bailee says to him, "Wait here and I will bring you the deposit," and the depositor did not wait and went away, and negligence occurred or theft in the case of a shomer sachar, the bailee is liable since this is not the place where he deposited it with him. But in the place where he deposited it with him, and he said to him, "Come to my house and I will hand over your deposit to you," and he did not come, the bailee is exempt [it appears to me]. And similarly, even not in the place of the deposit, if the depositor said to the bailee, "Bring me my deposit," and the bailee said to him, "Wait and I will bring it to you," and he did not wait and went away, the bailee is exempt from responsibility [Sma], for behold, the depositor himself exempted him when he would bring it here [Netivot HaMishpat]; and therefore, even if he deposited it for a time and it is within the time, he is exempt [it appears to me].

In what case is it said that the bailee can compel the depositor to receive his deposit even not in the place of the deposit, in a settled area? However, if he brought him his deposit in the wilderness, and he had deposited it with him in a settled area, he cannot compel him to receive it from him, and he may say to him: "Behold, it is under your responsibility until you return it to me in a settled area in the manner that I deposited it with you." And if the bailee wants to take upon himself the responsibility of the journey until the settled area, he can compel him to receive it even in the wilderness [Tur]. And so too, if he deposited it for a set time and the time arrived, he can compel him to receive it even in the wilderness and without accepting responsibility [it appears to me]. And so too, if when he deposited it with him the depositor said to him, "I want to go out to the wilderness," and the bailee said to him, "I also want to go to the wilderness," even though he did not speak with him about receiving it in the wilderness, nevertheless he can compel him to receive it in the wilderness, for that which he said to him, "I also want to go to the wilderness," is like saying to him, "on the condition that I return it to you in the wilderness." And some say that this is specifically when he said to him explicitly, "if I want, I will return it to you" [Maharshal]. And so it implies from the wording of the Shas [Bava Kamma 118a]. However, in truth, in such a case this is no novelty at all, and the Tur and the Shulchan Aruch did not mention this [and it seems to me that they had a different version in the Gemara, and so it appears from the Bartenura, and the wording of Rashi brought in the Beit Yosef is not like our version, and the Rambam in chapter 7 of Hilkhot Pikadon omitted this entire law, and it requires further study].

One who deposits with his fellow, and the owner of the deposit went to a province overseas, and the bailee wishes to set sail on the sea or to depart with a caravan or to travel to distant places—if he came and brought the deposit to a beit din, he is exempt from the responsibility of guarding it. Logic dictates this, for what should the bailee do? Shall he be as if imprisoned in his place because of this person's deposit? Furthermore, it is impossible to take it with him, for perhaps an accident will befall him. Therefore, he delivers it to a beit din, and the beit din deposits it in the hand of a trustworthy person for the sake of returning a lost object to the owners. However, the bailee himself shall not deliver it to another, for it is not within his power to deliver the deposit of others even to one more trustworthy without the permission of a beit din. If he did so, his law is like a guardian who delivered to a guardian, which was explained in siman 291. And it appears to me that even if when he deposited the deposit, he deposited it for a set time and the bailee understood and accepted, and within the time the bailee needed to travel to distant places, he is also able to deliver it to a beit din. For there is no reason to say that because he fixed a time for his deposit, he should cast his own affairs behind his back, and this is not "the ways of pleasantness." And even regarding a shomer sachar, it appears the law is so, for you have no greater ones than this.

And if he was unable to leave it in a settled area, such as if there was no beit din in that place or if they did not find a trustworthy person to whom to entrust the deposit, and he was forced to take it with him and it was lost to him through an accident, he is exempt, for he acted properly and was forced to do so. The deposit is no different than his own belongings in a matter where he acts correctly, and therefore there is nothing for which to obligate him, even if he is a shomer sachar, for it is a complete accident. And so too with any deposit, if he was forced to take the deposit from the place where it was placed because of some reason that arose, and he placed it in another guarded place and it was lost there through an accident, he is exempt, even if the owners designated a specific place for him, for he was forced to take it from there. And so too in any similar case.

If the bailee sent his deposit to him by means of another, whether the bailee said to the agent "carry this deposit to so-and-so" or whether he said to him "give this deposit to so-and-so," he is liable for its responsibility until the deposit reaches the hand of the depositor, since the owner of the deposit did not make him an agent to bring it to him. Therefore, if the bailee comes to retract and take the deposit back from the hand of the agent, he is permitted, since it is still under his responsibility, and how can we compel him that the deposit be in the hand of another? And regarding this, it is not relevant to say "give is like acquiring" as in the case of a gift, for it already belongs to the depositor, as this is merely agency and not an acquisition. In what case are these words said? When the bailee was not established as a denier. But if in the meantime he was established as a denier, the agent acquires it immediately on behalf of the depositor, and the bailee cannot retract and take it from his hand, for we are witnesses that the owners do not desire that he return it to him. Nevertheless, the bailee is liable for responsibility until it reaches the hand of the depositor. And one should not say: how can we obligate him in the responsibility of the object and not hand over the object to him? For certainly it is so, as he caused this to himself. And it appears to me that if he was established as a denier even before the depositor handed the deposit to him and the depositor knew of this, he may take it from the hand of the agent, for the depositor thought and accepted his status as a denier. And some say that the same applies even if he was not established as a denier, but rather that the owner of the deposit was accustomed to depositing with this person with whom it was now deposited last, he cannot retract and take it from him; and even if he is also accustomed to depositing regularly with this bailee as well, the law is so [Shach]. Nevertheless, he is liable for responsibility since he acted of his own will to hand it over to another, and that other is not permitted to return it to him. And so too, if the depositor sent to him "so-and-so is a trustworthy man," and he sent it by his hand, he cannot retract, since it is pleasing to the depositor. Nevertheless, he is liable for responsibility, for the depositor did not make him an agent but merely informed him that he is a trustworthy man, and he acted and handed it over of his own will; therefore, we judge him so.