Siman 340

It has already been explained in siman 291 that a borrower is liable for accidents, as is explicit in the Torah: "And if a man borrows from his fellow, and it is broken or dies, its owner not being with it, he shall surely pay." And all the more so is he liable for theft and loss. However, in a case where it died due to work, he is exempt. One should not wonder that since he is liable if it died on its own—even though the Angel of Death killed it without his cause—all the more so should he be liable when it died due to work, where it was killed through his cause in his work. However, the reason is that even though the Torah obligated the borrower for accidents, nevertheless, it is a simple matter that if the lender was also a cause of this, the borrower is exempt. Therefore, if it died due to work, he is exempt, for the matter has been revealed that it did not have the capacity to endure the work, and he was negligent in that he lent it to the borrower for this work [Ramban]. Therefore, if the borrower deviated in the work, he is liable, as will be explained.

Therefore, one who borrows from his fellow an animal or vessels or other movable property and they were lost to an accident in his possession, such as if it died or was broken or was torn or was captured, he is liable to pay; and it is unnecessary to state that he is liable for theft, loss, and negligence. However, for any damage that occurred to it due to the labor for which he borrowed it, he is exempt. And it is not only if it was weakened or damaged due to labor, but even if it died due to labor, he is exempt for the reason we explained. However, if the borrower deviated and performed other labor with it, even if it is lighter than the labor for which he borrowed it, and it died, he is liable. And even if he deviated within that same labor itself, such as if he borrowed it to plow and he plowed with it by day and by night, which is not the way of plowmen, or if he borrowed it to plow with it in the morning and he plowed with it at noon when the heat is difficult for it, or if he deviated from a valley to a mountain or from a mountain to a valley, he is liable. And see what I wrote in siman 309.

And there are those who asked: Why did we say that if he changed from a heavy labor to a light one and it died, the borrower is liable? Behold, regarding a renter, it was explained in siman 308 that it is proper to change from heavy to light, such as from wheat to barley; why then should the borrower be liable in a case where the renter is permitted to do so ab initio? And there is one who answered that certainly if there is nothing to attribute the death to the change, the borrower is exempt; and here we are dealing with a case where we can attribute it, even by a remote cause, that it died from the change. And as I wrote in siman 291 regarding the law of "its beginning was through negligence and its end was through an accident," that as long as we can attribute the accident to the side of the negligence, even by a remote cause, we attribute it [Sma]. And there is one who answered that certainly a borrower is liable in any case, even if we have nothing to attribute it to; and granted that the renter is permitted to change from heavy to light, and so too the borrower, nevertheless, if it died, the lender can say, even without any reason, that it died on account of the change, and this is not "died on account of labor" [Taz]. And it appears to me that certainly in a change from heavy to light, if he did not change the quality of the labor—for example, if he borrowed it to carry a kor of wheat and he carried a kor of barley—he is exempt. And here we are dealing with a change in the quality of the labor from heavy to light, such as if he rented a horse to ride upon it and that there should be a load of ten kikar upon it, and they harnessed the horse to a wagon and he led five kikar in the wagon; for even though it is known that riding is harder for the horse than walking with a wagon, and he also lightened its load, nevertheless he is liable, for we attribute it to the fact that this horse was not accustomed to going with a wagon, but was accustomed to riding. And so too anything similar to this. And thus is the language of the Tur and the Shulchan Aruch precise, as they wrote "if he changed and performed with it another labor," and in siman 308 this is not "another labor." And so it appears from the language of the Rambam, chapter 1 of Laws of Borrowing, see there.

Regarding the fact that the borrower is liable for accidents, our teacher, the Rema, wrote that this is specifically when the accident occurred through the power of the borrower, but if the accident occurred through the power of the lender, he is exempt. Therefore, one who has a collateral with a gentile and lent it to his fellow to borrow more money upon it, and the collateral was burned, the borrower is exempt, for in any case it would have been burned through the power of the lender. Thus far his words. And his words are puzzling, for behold, in the case of a beast that died of natural causes he is liable, even though it was not through the power of the borrower, and even if it died in the lender's house, for what difference does the Angel of Death make here or there [Netivot HaMishpat]. And there is one who says that his intention was when the lender was negligent with it, for this is the reason that if it died due to work he is exempt, as I wrote in section 1; but if so, what did he innovate for us in this? And furthermore, regarding a collateral that was with the creditor, in any case he is exempt, for behold, his fellow had not yet acquired it through meshikhah, and prior to meshikhah the guardians are exempt, as I wrote in siman 291, section 13. And even according to the opinion cited there in section 14 that they become liable prior to meshikhah, behold, in any case we require that the guardian accept upon himself his guardianship, as I wrote there [and in truth, in the Mordekhai, chapter HaSho'el, he wrote this reason as well].

And it appears to me that he informed us of a great matter in this, for behold, in siman 307, section 8, it was explained that sometimes the lessor pays the lessee, such as one who rented a cow from his fellow for a set time, and within that time the lessor borrowed it from the lessee and it died by accident, the lessor is obligated to pay the lessee since he is liable for accidents and the lessee is exempt. And according to this, one might say all the more so regarding a borrower, that when within the time of his borrowing the lender rented it from him and it died in the possession of the lender by accident, that the borrower must pay him, since the lender is a lessee and is exempt from accidents. And for this, our teacher, the Rema, informed us that nevertheless the borrower is exempt, because the Torah did not obligate the borrower unless it died in his possession and not in the possession of the lender. And the lessor who pays the lessee, that is specifically when he said to him, "your law shall be with the borrower and my law with you," as is written there. But regarding a borrower, when it died in the possession of the lender, the borrower is exempt even though the lender did not become obligated in this by virtue of his own guarding. And even though when he borrowed it to do his work in the house of the lender and it died there, he is certainly obligated, that is because in any event the animal is under the power and possession of the borrower. But when he borrowed it and delivered it to the lender to guard it, or if he rented it from him, the borrower is exempt. And we learn it from a verse, for behold it is written: "And if a man borrows from his fellow," and not when it is with his fellow under his power and possession. And therefore, regarding a collateral that was with the creditor from Reuven, and he permitted Shimon to borrow upon it as well, and it is dealing with a case where Shimon pulled the collateral and returned it to the creditor by the command of Reuven, Shimon is exempt, since from the beginning the collateral was with the creditor under the power of Reuven, and now too it is under his power, and even if Shimon had not borrowed upon it, it would have also been with the creditor. And this is what our teacher, the Rema, was precise about in his words, that the accident occurred "by the power of the lender," meaning that the power of the lender dominated it. And likewise, that which he wrote, "and he lent it to his fellow," means that his fellow pulled it [and there is proof for this from the Yalkut on the verse "from his fellow," see there carefully].

There is one who says regarding that which was explained, that if Reuven gave a pledge to a gentile and also authorized Shimon to lend upon it, and the pledge was burned or lost in the possession of the gentile, this Shimon is exempt—this is specifically when he stipulated with Shimon that immediately when Reuven pays, Shimon is obligated to remove the pledge from the possession of the gentile. However, if he gave him permission to encumber the pledge even after he pays his debt, then if it was burned or lost after he paid, Shimon is liable for all of it even if Shimon did not perform a meshikhah on the pledge at all. This is because the encumbrance he placed upon it, such that the gentile will not give it to Reuven, is like Shimon using the body of the pledge itself, and this is his acquisition. And if it was burned or lost before Reuven paid, Shimon is liable to pay according to the value of his debt relative to Reuven's debt; for since he authorized him to leave it in the possession of the gentile even after his payment, it is like using the pledge relative to the value of his debt. And all of this is specifically when the lender is a gentile, but when the lender is an Israelite, who acquires the pledge as written in siman 72, Shimon is liable in any case relative to the value of his debt if it was lost by an unavoidable accident while with the lender, for it is as if he gave permission to the lender to transfer ownership to Shimon, that he should merit it on his behalf relative to his money [Netivot HaMishpat]. And it seems to me that regarding an Israelite it is certainly so, for the lender becomes like Shimon's agent to acquire it; but regarding a gentile, through what did Shimon acquire the pledge such that he should be liable for it based on his encumbrance that Reuven authorized him to encumber? For there is no agency for a gentile, and why should the encumbrance be considered like meshikhah? And the law requires further study.

It has already been explained in siman 296 that a shomer chinam may stipulate to be like a shoel with mere words without a kinyan. And there is one who is uncertain regarding a shoel who stipulates to be liable for death resulting from labor, whether it is effective without a kinyan, since among all shomrim this liability does not exist at all. And the proof is that in siman 301 it was explained that regarding the guarding of land, a kinyan is specifically required. And the reason is perhaps that only regarding a shomer chinam is it effective without a kinyan to become like a shoel because the world will truly assume that he is a shoel; but regarding land, for which there is no liability even for a shoel, this reason is not applicable, therefore a kinyan is required. And if so, the same applies to death resulting from labor [Ktzot HaChoshen]. And there is one who says that it is certainly effective, for specifically regarding a matter where another who is not a shomer would also be exempt if such a thing occurred with him, one cannot stipulate with words alone; but regarding death resulting from labor, if another had taken it and it died from labor, he would be liable as the law of a damager, so too the shoel can stipulate even without a kinyan that his law be like another. And regarding land, there is another reason for it, because the Torah exempted them even from an oath. And this is the primary ruling according to the first reason we explained in siman 301 section 5, see there. And so wrote one of the great Rishonim [Shitah Mekubetzet Bava Metzia 69b; and see Tosafot ibid. 58a s.v. Amar]:

In siman 307, section 8, it was explained that a person who damages an animal pays only for damage (nezek) and not for pain (tza'ar), medical costs (ripui), loss of labor (shevet), or embarrassment. Therefore, if Reuven locked up Shimon's animal for several days, he is exempt; and even though he caused it to cease its work, nevertheless, there is no "shevet" regarding an animal. And even if a wound was caused to it through this, if the wound is destined to heal completely, he is exempt from everything during the time of the wound, for this is "shevet." And there are those who disagree on this and hold that regarding a wound, the term "shevet" is not applicable except to a person, who is not standing for sale; but an animal, which stands for sale, this is not "shevet" but "nezek," since if he comes to sell it now, he will have to lower the price. And for the law, we explained there with the help of Heaven. And it was further explained there that if it will not return to complete wholeness, such as if an impression remains from the wound, he is liable for the entire nezek. And we explained there that if without medicines it would not return to its original state, he is liable to heal it, for this is not "ripui" but "nezek." And he is also liable to provide its sustenance, for this too is included in "nezek." And according to this, regarding a borrower (sho'el) who is liable for accidents (onansin), if a wound occurred to it by accident where he did not deviate in its work, and it is destined to heal completely, and similarly if the flesh became lean on its own and it is destined to return to its previous fleshiness, he is exempt according to the one who exempts there. And according to the one who holds there that regarding an animal this is not "shevet" because it stands for sale, he is liable even as a sho'el in an accident. And there is one who says that even according to that opinion which holds him liable, nevertheless, regarding a sho'el in an accident, since it will eventually return to its health, he is certainly exempt, for the Torah did not obligate a sho'el for accidents except for a thing that does not return [Sma]. And there are those who disagree and hold that a sho'el in accidents is equal to the negligence (peshi'ah) of any person [Shach]. And the first opinion appears primary, for since the Torah specified regarding a sho'el "broken or died" and did not specify "captured" as it did regarding a paid bailee (shomer sachar), it comes to teach us that specifically in a matter where it is impossible to return to its original state completely—for even "broken," although it may heal, it is impossible that some recognition will not remain in the broken bone, and certainly "died," which will not return to its original state at all—but "captured," where it is possible that it will return from captivity completely, even though he is certainly liable when it is captured because they surely despair (ye'ush), nevertheless the Torah omitted it for this reason to indicate regarding all types of accidents like it that he is exempt. And even though in siman 291 we wrote another reason why the Torah did not write "captured" regarding a sho'el, see there in section 8, nevertheless it is also possible to say this reason [it appears to me].

And according to all the opinions that were explained regarding where it weakened on its own and was ultimately destined to return completely, in any case, if it died afterward through an unavoidable accident and the borrower is liable to pay, he pays according to what it was worth at the time of the borrowing. And even if it died not due to its weakness, we do not say that since he is exempt for the weakening according to the exempting opinion and his liability is only for the death, he should only pay according to what it was worth in its weakened state. For it is not so, as its weakening is the beginning of its death [Sma], as we consider them as one thing and it is a retroactive damage. And similar to this is one who stole chametz and Passover passed over it, where he says to him, "Behold, yours is before you," even though through the theft he prohibited it to him for benefit, as was written in siman 363. Nevertheless, when he destroys it after Passover, he pays him its value from before Passover. And if he were to steal from someone chametz that had already passed through Passover and destroyed it, he would not be liable for anything; if so, why should he be liable when he stole it before Passover? Rather, it is because whenever he loses it completely, we consider the damage from the first moment since he stole it. And so too here regarding a borrower in the case of an unavoidable accident [the Gra].

Regarding the exemption of "died due to work," the Rambam wrote in the first chapter of Laws of Borrowing that if one borrowed an animal from his fellow to plow with it and it died while it was plowing, he is exempt. However, if it died before he plowed with it or after he plowed with it, he is liable. And so too, one who borrows an animal from his fellow to go with it to a certain place and it died under him on that path, or one who borrowed a bucket to fill with it and it was torn in the pit at the time of filling, or one who borrowed an ax to split wood with it and it broke at the time he split with it due to the chopping, and anything similar to this, behold he is exempt, for he only borrowed it to perform this work and behold he did not deviate. Thus far his words.

The Tur wrote concerning him that it appears from his words that he only exempts at the actual time of labor; however, my father, our teacher, the Rosh, wrote: "died due to labor" means, for example, that in the course of its walking it stumbled and fell and died, and the borrower did not deviate with it nor was he negligent with it, or it became exhausted and overheated and died. But if it died on the way and he did not sense in it the fatigue of the exertion of the way, he cannot swear that it died due to labor, for perhaps if it were standing at its trough it would have died [and therefore when there are no witnesses and he is obligated to swear the oath of the guards and he is unable, he is obligated to pay, even though he could not have known, since the essence of the oath of the guards is based on the doubt of the claimant]. But where weakness and fatigue entered it from the exertion of the way, even if it did not die immediately but rather continued to waste away for a long time, we call it "died due to labor." Thus far his words. And similarly, several of the Rishonim challenged the Rambam that he only exempted in a case where it died at the time of labor, for the Sages, of blessed memory, said "died due to labor" and not "at the time of labor."

And certainly the Rambam also does not disagree on this, for he wrote there: If its flesh became lean due to the labor, he is exempt and shall swear the oath of the guardians that it became lean due to the labor. Thus far his words. Behold, he wrote "due to labor," and his intention appears to me to be that this is the explanation: Behold, the Torah exempted a borrower when it died due to labor, and when there are no witnesses, he must swear that it died due to labor. And this is a matter that is difficult to know—if the cause was due to the labor, or perhaps even without the labor this occurrence would have happened, and who can testify to this? And how can the borrower swear to this? Behold, there are certainly things upon which we can stand, such as an ax that broke due to the splitting and a bucket that broke at the time of filling, for everyone sees that they broke due to labor. But an animal that died during the time of labor, who is to say that without the labor it would not have died? Therefore, the Rambam, of blessed memory, gave a general rule in this: that a thing that occurred during the time of labor, even though it is possible to say that even without the labor it would have been so, nevertheless he is exempt, and this is called "died due to labor," for presumably it died due to the labor, and witnesses are able to testify to this and the borrower is able to swear to this. But regarding an occurrence that happened after the labor, he cannot swear unless they see outwardly that it is due to the labor, such as with the leanness of flesh, where it is possible to see that every time they perform labor with it, it becomes slightly more lean. Therefore, if afterwards in the course of time it became completely lean or died, even though it is a long time after the labor, he can swear to this, that due to the labor it became lean and died. But if it died after the labor without the beginning of leanness or weakness during the time of labor, even though it is possible that it died due to the exertion and exhaustion of the labor, nevertheless he cannot swear to this. And according to this, the Rambam is more lenient than the Rosh, for from the words of the Tur it is implied that when it died literally on the road during the time he walked with it, if he did not sense exhaustion in it, he cannot swear that it died due to labor; whereas according to the Rambam, in any matter that is during the time of labor, he can swear and the witnesses are able to testify, and this is called "due to labor." [And see there in Kesef Mishneh and in Rivash siman 423].

Our teacher, the Rema, wrote: An animal that became exhausted from its work and overheated and died afterwards, or stumbled on the road and fell and died, is called "due to work," and specifically where he sensed it while still engaged in the work; but if he did not sense it immediately, he cannot swear that it died due to work, for perhaps even without this it would have died. Thus far his words. And it appears his intention is also as I have written, that specifically in a case where it died afterwards is sensing required, but not during the time of the work itself, and perhaps he interprets the opinion of the Tur accordingly as well, and such is the primary ruling [see Be'er HaGolah and examine carefully].

There is one who says that one who borrows an animal from his fellow to travel a known path, and bandits or wild animals came upon him on that path and took it from him by force, it is properly considered "died due to work." Even though this is not related to the work itself, nevertheless, since he borrowed it to travel on this path, and the path is known for bandits and wild animals, this itself is like "due to work" [Beit Din Hagadol]. However, if it was stolen on this path by armed bandits, even though this path is known for this, nevertheless, since theft also occurs in the city, this is not like "died due to work" [Netivot HaMishpat]. And there are those who disagree with all of this and hold that it is not called "due to work," for even without traveling the path, it is possible that some similar accident could occur to it; for it is only called "due to work" when the cause comes from the essence of the work itself. Therefore, one who lends his fellow a cat to hunt mice and the mice ate it, or it ate many mice and became overheated and died, the borrower is exempt, for this is literally "due to work." Similarly, if he borrowed a weapon to fight and they took the weapon from him in the war, it is like "due to work" and he is exempt [Sma]. And some say that since the weapons do not fight on their own and it is the person who fights, therefore it is an accident like all other accidents regarding the weapon, and he is liable [Shach]. However, if the war involved a matter of life and death, he is exempt, even if he borrowed them without the knowledge of the owner, for this is like a pursuer who pursued after a pursuer when he broke the vessels of another, where he is exempt as written in siman 380; and the same applies to one who takes vessels to save from a fire [Netivot HaMishpat]. And see what I wrote in siman 274.

One who borrows an animal is liable for its sustenance from the time he performs meshikhah until the end of the days of its borrowing. This is according to the opinion explained in siman 291, that without meshikhah, liability does not take effect upon the guardians. However, according to the opinion mentioned there that meshikhah is only for the purpose of retraction—so that he cannot retract—but the liability of guardianship takes effect upon the guardian immediately when the owners withdraw from guarding the object, so too regarding the liability of a borrower concerning sustenance, we also do not require meshikhah; rather, immediately when the owners withdraw, the borrower is liable for its sustenance and for its accidents, even though he has not yet used it. And even though the lender can retract before the borrower performs meshikhah into his domain. And the same applies to one who deposits a vessel or an animal with his fellow and afterward gave him permission to use it, and he agreed to use it, his law is like a borrower even though he has not yet used it [Shach].

If its flesh became lean with a leanness that does not return, he is liable to pay for the depreciation in value. And if the leanness was due to work, he is exempt and must swear the oath of the shomerim that it became lean due to work. And if the work was performed in a place where there are onlookers, he is not exempt by an oath until he brings witnesses, as is written there. And regarding leanness that is destined to return completely, it was explained in section 8.

Using a borrowed item, even without meshikhah and without the removal of the owner's domain, the borrower is liable for accidents. For example, one who borrowed a bench to sit on in the courtyard of the lender while the lender was there; once he sat upon it, he is liable for accidents. And so too when one borrowed books and anything similar to this, for usage is no less than meshikhah regarding a borrower, since the essence of borrowing is for the purpose of usage [Netivot HaMishpat].

One who borrows a cow from his fellow, who had established with him that he would borrow it, and the lender sent it to him by the hand of his son, or by the hand of his messenger, or by the hand of his servant, and even if he sent it to him by the hand of the son, messenger, or servant of the borrower, and the borrower did not designate them as messengers to receive it from the lender but rather the lender did so on his own, and it died before it entered the domain of the borrower, he is exempt, since he did not command him to send it by their hand. However, if the borrower said to him, "Send it to me by the hand of my son," or "by the hand of my servant," or "by the hand of my messenger," or even "by the hand of your son, your messenger, or your Hebrew servant," or if he said to him, "Send it to me by means of whomever you wish," and even if the lender said to him, "Behold, I am sending it to you by the hand of your son, your servant, or your messenger," and he sent it by his hand and it died on the way, behold, he is liable; for since he sent it according to his command, it entered his domain immediately. But if the lender sent it to him by the hand of his Canaanite servant, even though the borrower said to him "Send it," and he sent it and it died, he is exempt, because his hand is as the hand of his master, the lender, and it has not yet left his domain.

It appears to me that in all these cases where the borrower is liable, even if the agents did not pull it into their domain, nevertheless, since they removed it from the domain of the owners, he is liable. And even according to the one who holds that for guardians pulling is required, nevertheless, we have already explained in siman 291, section 13, that we do not require pulling into his actual domain, for even in a public domain he acquires it. And even according to those who disagree there, it appears that in this they would admit, for since by his command he delivered it to them and removed his guardianship from it, it immediately entered the domain of the borrower. The laws of agency were explained in siman 121 [and nevertheless, the law requires further study, and it appears to me that it depends on the two answers of the Tosafot in Bava Metzia 99a, starting with the words "Since," and see Tosafot Bava Kamma 79a, starting with the words "Or," and delve into it].

If the borrower said to him, "Strike it with a staff and it will come," and the lender did so, the borrower is not liable until it enters his domain. And even according to the one who holds that we do not require meshikhah regarding the liability of guardians, nevertheless, we require that the lender remove his guardianship from it and that it be under the guardianship of the borrower. And here it is not under the guardianship of the borrower, for the borrower is not present, and his mind did not rely upon the lender doing so, and the lender can take it back. For this reason, some say [Nimukei Yosef] that even if the borrower said to him, "Strike it with a staff and I will become liable to you," he is also exempt because he can take it back [and the difficulty of the Shach in subsection 10 is answered]. However, the opinion of the Rosh and the Tur is that when the borrower said to him, "Strike it with a staff and it will come," and he did so, the borrower is liable immediately, since he sent it away from him according to his command. And in siman 263 it was explained regarding a lost object that in such a case one is obligated to attend to it, since he caused it to take to the roads; certainly regarding a borrower, when the lender did so and removed his mind from it, if the borrower does not become liable for its guardianship, it could easily be lost. And if the courtyard of the borrower was inner to the courtyard of the lender, and he said to him, "Strike it with a staff and it will come to my courtyard," even when there are hiding places in the courtyard of the lender and it is possible that it is still hidden in one of the hiding places and did not go to the courtyard of the borrower at all—for the lender does not watch it until it enters the courtyard of the borrower, but rather strikes it with a staff so that it will go and enters the house—nevertheless, the borrower is liable even according to the first opinion, because the mind of the borrower relied upon the fact that it would presumably enter his domain [Bava Metzia 99a].

And so too at the time the borrower returns it to the lender, if he sent it by the hand of another and it died before it reached the domain of the lender, he is liable, for it is still under his responsibility. But if he sent it with the consent of the lender via another and it died, he is exempt. If the borrower sent it by the hand of his Canaanite slave, even though the lender said to him "send it," and he sent it by his hand, if it died on the way he is liable, for the hand of a slave is like the hand of his master and it has not yet left his domain. In what case does this apply? When he returned it within the days of its borrowing, but if he returned it after the days of its borrowing, he is only like a shomer sachar, as was written in siman 291. And even if it is still in the house of the borrower, if he is not using it, he has left the status of a borrower and become like a shomer sachar. And it appears to me that a lender who said to a borrower, "strike it with a staff and it will come to my courtyard," and he did so, the guardianship of the borrower is removed, even according to the first opinion that was explained; for specifically regarding a borrower who said to a lender, the borrower's mind did not rely on the fact that the lender would do so to let it go on its own, and he did not accept its guardianship [see Rashi there s.v. bifnim]. But a lender who said to the borrower, certainly the lender's mind relied on the fact that the borrower would do so, since the animal is not his and the owner commanded him. And it has already been explained there that the borrower must return it to the hand of the owner himself, and even if he returned it to the wife of the lender it is not effective; even though regarding a deposit it is effective, nevertheless regarding a borrower, where all the benefit is his, it is not effective, and such is the law regarding a loan. And if he died, he shall return it to his heirs, and if there were many heirs, it is sufficient when he returns it to one of them [it appears to me]. And if the wife of the lender conducts business in the affairs of the husband, there are those who say that the borrower is exempt when he returned it to her hand [Netivot HaMishpat].

If the lender said to him, "Send it to me," and before he managed to send it the lender died, he should not send it, for the property has fallen before the heirs. And if he sent it, it is a legal doubt whether the borrower is liable for responsibility before it reaches the hand of the heirs or not. And the doubt is whether his statement is effective to remove it from the domain of the borrower even after he died or not. The opinion of most of the poskim is that it is not effective [the Gra]. Therefore, the borrower is liable for responsibility, for since he knew that he died, he should not have sent it without the permission of the heirs. However, after the days of its borrowing have concluded, it appears to me that he is not liable as a shomer sachar to the heirs, for the reason that he is liable as a shomer sachar was explained in siman 291, that since he benefited, he is liable, and behold it was the lender who benefited him and he commanded him to send it and remove his responsibility from upon himself; and how can he be liable to the heirs against his command, for he did not benefit from them? But when the lender did not say so to him, certainly the borrower is liable to the heirs according to the law of a shomer sachar after the days of the borrowing, just as he was liable to their father. And in siman 72 several laws of the law of borrowing were explained, see there.