Siman 341

One who borrows a vessel or an animal from his fellow without specification, the lender may demand it at any time he wishes and the borrower is obligated to return it. It is not similar to a loan, where an unspecified duration is not less than thirty days, as written in siman 73; for specifically regarding money, which is meant for expenditure, he presumably did not lend it to him for a duration less than this. However, one who borrows an object, it is possible that he needs it for a moment, and he can demand it from him immediately, provided he used it once. There are some of our teachers who hold that even an unspecified borrowing is not less than thirty days [Rabbeinu Tam in Tosafot, Shabbat, beginning of chapter 23], but most of the poskim disagree on this. The Rambam wrote likewise in the first chapter of She'elah. Regarding garments, it is explicitly implied in the Gemara that it is not the way of the world to lend them even for seven days [Chagigah 22b], unless he lends them for a feast or for mourning and the like, as written in section 6. And it is a simple matter that when the lender does not demand it, he is permitted to use it without a time limit and is liable for accidents [Netivot HaMishpat]. The borrower cannot say, "I have already ceased using it and you should have taken it from me," for on the contrary, the borrower was obligated to return it to the lender, and as long as he has not returned it, he is liable for accidents since it is without a time limit. If the lender dies and his heirs do not know of this borrowing, he is not permitted to use it without the knowledge of the heirs for more than thirty days [as is implied from the Rosh, first chapter of Makkot, siman 4].

And if they borrowed it for a fixed time, since he performed a meshikhah and acquired it, the owners cannot remove it from his hand until the end of the days of the borrowing. And even if the borrower died, the heirs may use the borrowed item until the end of the time. And even though it was explained in siman 329 regarding one who receives a field that the giver can remove the son, a borrowed item is like something acquired by the borrower for the duration of his borrowing, for he is liable even for accidents; therefore, his sons inherit his right [Sma]. And it appears to me that according to what I wrote in siman 340, section 17, that use of a borrowed item makes him liable for accidents, therefore if he used the borrowed item even if he had not yet performed a meshikhah and died, his sons inherit his right:

And even though the heirs may use it for the entire duration of the borrowing, nevertheless they are not liable for accidents. And thus our sages, of blessed memory, said [Ketubot 34b]: If their father left them a borrowed cow, they may use it for the entire duration of its borrowing and are not liable for its accidents even if they used it, for they did not accept upon themselves the liabilities of accidents. Nevertheless, they are liable for it as a shomer sachar even if they did not use it, for the permission of use obligates them as a shomer sachar. And if it is not their desire to be obligated as a shomer sachar, they must return it to the lender, for it is impossible to leave it without the responsibility of guarding. And the lender cannot say, "Since you do not have the liabilities of accidents, return it to me," for an accident is not common [it appears to me]. However, there is one who says that in truth, if the lender said to the orphans, "Return to me the cow that I lent to your father, or accept upon yourselves the liabilities of accidents," we listen to him, and such is the primary ruling [Shach]. But if he said nothing to them, they may use it and are exempt from accidents.

There is one who wrote that this applies specifically to a borrower, but in the case of a renter who died, the heirs are not liable for theft and loss [Hagahot Ashri, chapter HaSho'el, section 4]. According to this, it is obvious that the lessor may take it from them if they do not obligate themselves for theft and loss. If they do obligate themselves, it appears that their law is like that of a borrower, in that they may withhold it for all the days of its rental and use it in the manner that their testator used it. And even though regarding a borrower we explained the reason that due to the liability for unavoidable accidents it is as if it were acquired, and the renter is indeed not liable for unavoidable accidents, nevertheless regarding a renter we did not require this, for a rental for its day is a sale.

If their father left them a borrowed cow and they did not know it was borrowed, and they slaughtered it and ate it: if their father left assets, they pay from the assets the full value of its worth, for his assets became liened from the time of borrowing. This is so even if he left only movable property, as was written in siman 107, for the Geonim enacted that the movable property of orphans is liened to a creditor. The opinion of the Rambam, of blessed memory, is that even if it died in their possession, they are obligated to pay from the assets since the lien took effect from the time of borrowing, and this will be explained in siman 344. However, the opinion of the Rosh and the Tur is that the lien does not take effect on his assets except from the time of death or other accidents, and at that time the bequeather is no longer in the world for his assets to become liened. Therefore, in the case of death or other accidents, they do not need to pay from the assets, except where they slaughtered it and ate it, for they benefited from this, and also the father was negligent in that he did not inform them that it was borrowed; therefore, they are obligated to pay from his assets. If he did not leave assets and they slaughtered it and ate it, they pay the value of the meat at a cheap rate, which is a third less than the market price, for the sages established that at such a price any person would buy meat even if otherwise he would not have eaten meat. The hide they return to the owners. And there is one who says that they acquired the hide through transformation and only pay its value, but this does not seem correct, for transformation is only relevant regarding a thief. In the case of an unpaid bailee or a paid bailee who died and the heirs did not know that he was only a bailee over it, and they slaughtered it and ate it, even if he left assets they do not need to pay the full amount, but only the value of the meat at a cheap rate, for he was a victim of an accident through his death; however, a borrower is liable for accidents.

One who borrows an inn from his fellow for lodging, it is not less than one day; if he borrowed for a Sabbath stay, it is not less than two days; for a wedding, it is not less than thirty days. One who borrowed a shirt from his fellow to go in it to a house of mourning, the measure is enough for him to go and return, and some say that he is not permitted to take it back until the seven days of mourning have passed. If he borrowed it for a wedding house, the measure is that entire day, and some say until the seven days of the wedding feast have passed. And if he borrowed it to make his own wedding feast, according to all it is not less than seven days, and some say thirty days. And see in Yoreh Deah siman 340. And these matters depend on the context and the custom of the place.

Just as a borrower for a set time, once the borrower has performed meshikhah, the lender cannot retract, so too one who borrows a vessel from his fellow to perform a specific task with it, once the borrower has performed meshikhah, the lender cannot take it from his hand until he performs that task with it. And similarly, if he borrowed a horse from him to go with it to a specific place, he cannot return it from the hand of the borrower until he goes with it to there and returns. And the lender cannot say, "You should have performed the task until now," or "to go until now," for since he did not establish a set time for the task or the journey, he may perform it at whatever time he desires. Nevertheless, it appears that he may not delay them significantly more than the required measure, and it depends on the assessment of the beit din according to the task and the journey, and according to the time and the place.

Our sages, of blessed memory, said [at the end of the chapter HaSho'el]: A person may borrow "in its goodness" forever, provided that he performed a kinyan with him, and he returns the handle to him. Rashi explained that one who says, "Lend me this vessel in its goodness," it is borrowed forever, for "in its goodness" implies as long as it is good. And even if he returned it to the lender, he may go back and take it from him when he needs it. Therefore, we require specifically that they performed a kinyan from the lender; but if they did not perform a kinyan from the lender, he does not take it from him when he has returned it, for it was nothing more than mere words, as the kinyan of meshikha was nullified when he returned it, for afterwards it is like a new borrowing. And if it broke, he returns its shards to him and does not go back and repair it, for he only lent it to him as long as it is in its goodness. And so wrote the Rosh, the Tur, and our teacher, the Rema.

The Rambam, of blessed memory, in the first chapter of Laws of Borrowing, wrote: One who borrows a vessel from his fellow to use it and said to him, "Lend me such-and-such a thing in your goodness," meaning, you are not lending me this thing in the manner of all lenders, but rather according to the goodness of your heart and your generosity, such that you are not particular about the time—if they performed a kinyan with the lender regarding this, the borrower may use it forever until the vessel ceases from performing its work, and he returns its shards or its remnants; and the borrower is not permitted to go back and repair the vessel or to make it a second time. Thus far his words. Our teacher, the Beit Yosef, transcribed it. And it is possible that they do not disagree except in the interpretation of the Gemara and not regarding the law, and even the Rambam admits that even if he returned it to the lender, he may go back and take it from him. And if he said plainly, "Lend it to me in goodness" or "in your goodness," it is like a plain borrowing, for the language of people is such: "Do me a favor and lend to me" [the Rosh], and he did not intend that he should borrow it forever [and such is the intention of the Rif; see Sma].

And according to both interpretations, the borrower is not permitted to lend to others; even though he himself may use it forever, nevertheless, it is borrowed by him and a borrower is not permitted to lend. And the lender cannot take it from him against his will even when it is not the time of the borrower's work, for he can say to him: perhaps you will break it and cause me to lose my right that you gave me [Tur]. And when this vessel is lost through an unavoidable accident while in the hand of the borrower, he only pays the lender the value of the shards. And similarly, any borrower who borrowed a vessel to perform his work with it after several days, and the lender came and said to him: "Give me the vessel now and I will perform my work with it since you do not yet need to perform yours," the borrower can withhold giving it to him, for perhaps he will lose it [Netivot HaMishpat]. And if it was lost through an unavoidable accident from the borrower before he performed the work, he pays him the full value of the vessel and deducts for him the value of the depreciation that would have occurred had he used it for the duration of the borrowing [ibid.].

One who says to his fellow, "Lend me an ax to hoe this orchard," may hoe only that orchard and is not permitted to hoe another orchard with it, even if it is similar to it. And that which was explained in siman 308, that regarding a similar task one may change, nevertheless, if a circumstance occurs where it breaks due to the work, the lender will say that the change caused it and will find a pretext to attribute it [Sma]. And even if the borrower accepts and takes responsibility for this, nevertheless, it is forbidden for him to change, for perhaps the lender would not have consented to this orchard that he wishes to hoe for some reason he has; even if the reason is not true, nevertheless, he is a borrower without knowledge [Taz], and it is not similar to a renter. And if he said to him, "Lend me an ax to hoe an orchard," he may hoe one orchard, whichever he wishes, even if it is not his, for behold, he did not say to him "my orchard." And if he borrowed it to hoe many orchards of his, he may hoe all of his orchards. And even if he did not say "many" and did not say "his," he may hoe all of his orchards, but not those of others [Tur], for if we permit him to hoe those of others as well, there is no end to the matter [Sma]. But of his own, he may dig as much as he wishes, and even if all the iron is destroyed in the hoeing, he returns to him the wooden handle, and the lender cannot protest against him, for on this condition he lent it to him since he said to him "orchards" in the plural. And even though in a sale in such a case he only gives him two, as written in siman 216, a sale is different, for presumably he did not sell everything he has; but in a loan, it is possible that he is not particular about this. Furthermore, in a sale the seller is the possessor, and in a loan the borrower is the possessor; therefore, his hand is on the upper [Tosafot]. And there is one who says another distinction: that there the seller spoke in the plural, we interpret the language in his favor, and here the buyer spoke, we interpret in his favor. And according to this, the law would change in a sale when the buyer speaks, and in a loan when the lender speaks, but it does not appear so from all the poskekim; therefore, the main point is as I have written [it appears to me].

One who says to his fellow, "Lend me this trough"—and it is a well from which they water the fields—and it collapsed, he cannot go back and rebuild it, for he only intended for as long as this trough exists. If he said to him, "Lend me a trough" without specification, and it collapsed, the borrower goes back and rebuilds it until he waters all of his fields. For just as if he said to him "to hoe orchards," he hoes all of his orchards, so too when he borrows from him an object designated for the work of the fields, if he borrowed it without specification, he performs with it all the fields that he has. And if he said to him, "Lend me a place for a trough," the intention is to dig in his land a place for watering the fields, and he digs and builds in the land of the lender until he finds a place suitable for this, for on this condition he lent it to him. Therefore, if he dug in one place and found it was not suitable for this, he digs in other places and builds the place of the trough that will suffice for him to water from it all of his fields or all of his animals, according to what he stipulated with the lender. And specifically where he performed a kinyan sudar for this, for here meshikha is not applicable. And the place of digging at the beginning the lender shall give to him, and he cannot dig in another place until he digs in the place that he showed him and does not find his requirement. And the Tur wrote that the borrower builds in any place he desires in the land of the lender, and they wondered about him, for even the holder of a document has the lower hand, and how is it in the power of the borrower to choose at the outset the place against the will of the lender? Therefore they said that the Tur did not use this language precisely. But it seems to me that he used it precisely, because the borrower can say that since according to my knowledge this place is not suitable for a trough and I will be forced to toil another time with such great toil, I do not wish to toil twice; and behold, you do not give a guarantee that in this place I will find [water], and you lent it to me to toil one time and no more.

Regarding that which has been explained, that when one lent a trough without specification and it collapsed, he returns and repairs it, this is specifically when the borrower desires this; however, he cannot compel the lender to repair it. And when the days of his borrowing are completed and the lender needs the trough, he shall pay the borrower the expenses of his repair [Netivot HaMishpat], and according to the value that the borrower utilized it, he shall deduct for him [it appears to me]. And from what has been explained, we are able to learn regarding all matters in the affairs of borrowing, for it is impossible to explain all the details that will occur in the affairs of the world.