Siman 346

It has already been explained in siman 291 that it is a decree of the Torah that when the owners of the object were in the work of the borrower or the shomer, he is exempt from all laws of safeguarding. The primary verse is written regarding a borrower: "And if a man borrows from his fellow and it is broken or dies, its owner not being with him, he shall surely pay. If its owner is with him, he shall not pay." And from a borrower we learn for all shomerim, as was written there. And specifically when the owners were with him in his work at the time of the commencement or before, but if they were not with him at the time of the commencement, it is of no effect, as was written there.

Therefore, a borrower whose lender was with him in his work at the time he performed the meshikhah of the borrowed item, even if it was stolen or lost through negligence, he is exempt, as it is stated: "If its owner is with him, he shall not pay." There is no difference whether he was with him through borrowing, such as where the lender lent himself to perform the work of the borrower, or through hiring, where he hired himself to perform the work of the borrower. And there is no difference whether he was with him in that same work involving the borrowed item, such as where he borrowed an animal from him and the lender is shepherding it, or whether he was with him in another work. Even if he served the borrower in a light task like drinking water, such as where the borrower said to the lender, "Give me water to drink," and while he is serving him with the drinking he lent him his cow or another object, it is a borrowing with owners. But if he performed the meshikhah first and afterwards gave him water to drink or performed another work for him, it is not a borrowing with owners, since the meshikhah of the object preceded it.

And so there is no difference whether the borrowing or hiring of the owners occurred together with the borrowing of the object as one, or whether the owners were borrowed or hired to him beforehand and afterwards he borrowed the object from him, and even if at the time of the accident they had already departed from the work of the borrower. But if the owners were not in the work of the borrower at the time of the beginning of the borrowing, even if afterwards he borrowed the owners or hired them and they were in his work even at the time of the accident or the negligence of the borrowed object, or at the time of the theft and loss, this is not borrowing with the owners and he is liable for all the laws of safeguarding. For the primary concern of the verse is for the beginning of the borrowing, as it is written: "And if a man borrows etc. if its owner is with him," which implies at the time of the beginning of the borrowing. And our sages, of blessed memory, expounded from the precision of the verses that since it is stated "if its owner is with him he shall not pay," it is explicitly clear that if its owner is not with him he shall pay. And why must it be said "if its owner is not with him he shall pay"? Rather, to tell you: if its owner is with him at the time of borrowing, even though at the time of the accident he was not with him, he shall not pay; and if its owner is not with him at the time of borrowing, even though at the time of the accident he was with him, he shall surely pay [Bava Metzia 95b].

Our teacher, the Beit Yosef, wrote in section 3: If he asked the owner and he consented to be borrowed to him, even though he had not yet begun the borrower's work at the time of the pulling of the cow, but rather was inviting and preparing himself to go, it is properly considered "with him in his work." But with a mere statement where he says he will be borrowed to him and did not prepare himself for his work, it is not "borrowing with the owners." Thus far his words. And there is one who says that even with a statement, when he obligates himself through his statement to enter into the work, it is "borrowing with the owners" [Shach]. And it appears to me that this is when the work is ready to be performed immediately, for then his statement is considered preparation; for if not so, neither his statement nor his preparation would be considered the beginning of work [and this is evident from the Ramah in the Tur, and from the wording of the Rosh himself this is proven, and it is also evident from the Sma, and the difficulty of the Taz is resolved, for they are one and the same, and examine it].

But from the wording of the Rambam in the second chapter of Laws of Borrowing, it is clarified that neither the preparation nor the speech is effective, and we require specifically that he begin the labor [the Gra]. And even though it is possible to say that he employed the wording of the Gemara according to his custom, nevertheless, from the precision of his wording it is implied so. And even though it is stated explicitly in the Gemara that for the owners, speech suffices, this is only that a kinyan is not required; but regarding the law of "he was with him in his labor," it is not effective without the beginning of the labor. However, from the wording of our teacher, the Beit Yosef, it is implied that the preparation is effective when the labor follows immediately, and speech even in such a case is not effective. And for the halacha, it appears like the "there is one who says" in section 4, and one should also incline the wording of the Rambam and the Shulchan Aruch to this: that whenever the matter is done immediately, the speech and the preparation are like the beginning of the labor. And because in most cases the preparation is adjacent to the labor and the speech is distant from the labor, therefore he distinguishes in the Shulchan Aruch between speech and preparation.

The exemption of "he was with him in his work" exempts even if the borrower did not hire him and did not request him to assist him in his work, but rather he did so of his own accord; it exempts the borrower from the laws of safeguarding. And such is the law regarding all guardians, for the Torah did not hang the exemption on anything other than "its owner is with him," and there is no difference in the manner of his being with him. Therefore, if Reuven lent his animal to Shimon for a load or rented it to him, and Reuven went to support it and to load it at the beginning of the work, it is a case of borrowing with the owners, even though Reuven did this of his own accord and not according to the request of Shimon, unlike those who disagree on this. But if Reuven went only to see that they do not add further load upon it, and his intention was not to assist in the loading, this is not borrowing with the owners; and even if he held the saddle or the straps that are upon his animal at the time of the action, since this is only for the benefit of the animal so that it should not be pained and the like, and the essence of his holding is not to assist in the loading of the burden, it is not called borrowing with the owners.

If one said to him, "Watch for me and I will watch for you," it is a case of "safekeeping with the owners." However, "Watch for me today and I will watch for you tomorrow" is not considered a case of "with the owners." Similarly, regarding borrowing, one who says to his fellow, "Lend to me today and I will lend to you tomorrow," this is not "borrowing with the owners." Nevertheless, his law is only that of a shomer sachar, for all the benefit is not the borrower's, as was written in siman 305. And regarding "Lend to me and I will lend to you," two opinions were explained there as to whether it is "borrowing with the owners." Partners in a business, when both are occupied with the partnership and one borrowed an animal or an object from his fellow for his own needs, even if not for the business of the partnership, it is "borrowing with the owners" according to all opinions, for the partner who is the lender is with the borrower in his work in the business of the partnership. But if only one is occupied with the business and the second does nothing, if the second borrowed from the one who is occupied, he is exempt, for he is with him in his work. But if the one who is occupied borrowed from the second, he is liable, for he is not with him in his work since he is not occupied with the partnership [it appears to me].

One who borrowed an object from two partners, and one of the partners was borrowed to the borrower for his work or was hired to him, this is a doubt whether it is "borrowing with the owners" or not. For perhaps that which the Torah wrote, "if its owner is with him," means that all its owners must be with him in his work and not half the owners; or perhaps he is at least exempt from his portion. And similarly, partners who borrowed an object from an individual, and the lender was borrowed or hired to one of the partners for work that was not for the partnership, it is also a doubt whether the Torah insisted that the lender be in the work of the entire borrower, or it is possible that this partner with whom he is in work is exempt from his portion. And it is a legal doubt [ibid. 96a]. Therefore, if it died, the one who borrowed from partners does not pay the portion of the one who was in his work; and similarly, partners who borrowed, this partner is exempt from his portion. And if the owners seized [the object or its value], it is not removed from their possession according to the opinion of the Rambam, for seizure is effective even in a doubt of the Shas; and according to those who disagree with him, seizure is not effective, as I wrote in siman 202, and see what I wrote in siman 414 [Shach].

And likewise, there is a legal doubt when one borrowed an animal or an object not for labor, but rather to appear wealthy with them, whether he has the status of a shoel to be liable for accidents. And likewise, when he borrowed it to perform labor with it worth less than a perutah, or if he borrowed two cows to perform labor with them worth a perutah: if we follow the borrower and the lender, there is a perutah here, but if we follow each cow, there is not a perutah in one. And if we say that less than a perutah is not called borrowing, it is possible that in this case as well he is not a shoel. And therefore, if he borrowed an animal to mate it, since he borrowed it for a transgression and did not borrow in the manner of people, it is a legal doubt, and the law is as I wrote in section 8.

And from the words of the Rambam, of blessed memory, in the second chapter, it is explained that these doubts are not a doubt regarding the essence of the borrowing, for he is certainly called a borrower and is liable for accidents; rather, the doubt is regarding the matter of when these borrowings were with the owners, whether this has the law of borrowing with the owners or not, since this is not a complete borrowing, and in such borrowings it is possible that it is not relevant to say that the owners are in the work of the borrower.

And regarding all these doubts, the Rambam, of blessed memory, wrote that in the case of negligence with the owners, he is liable. They challenged him: do we not maintain that negligence with the owners is exempt? Some have answered that since negligence is close to being a damager, even though negligence with the owners is exempt, nevertheless, since there is a legal doubt in this matter, the negligent party is liable as long as he has no clear proof to exempt himself [the Maggid Mishneh]. And there is one who answered that behold, the exemption of negligence with the owners is also due to a legal doubt [Tosafot Bava Metzia 95a], and since these are also exempt because of doubt, there are two doubts, and it would be a double doubt toward stringency [the Gra]. But the first answer is insufficient, for if so, in every case of negligence with the owners he would be liable [ibid.]. And it seems to me that the Rambam does not hold that the exemption of negligence with the owners is because of doubt, since he did not write it among the doubts. And the Rambam certainly holds that it is not because of doubt, for the one who exempts negligence with the owners in the Gemara, his reason is because he holds that a verse is expounded for what is before it regarding a paid watchman and a borrower, but not for what is before that regarding an unpaid watchman. And from his words in chapter 10 of Shemittah, law 13, and in chapter 5 of Tumat Ochalin, law 22, it is explicitly clear that he rules that a verse is expounded for what is before it and for what is before that; see there. And one could sustain the first answer, except that the logic itself is forced; for ultimately it is a legal doubt, and what does it matter to me if he is considered like a damager or not? Do we extract money in the case of a damager based on a doubt? Therefore, it appears to me that there is another intention in his words. For one who examines the Rambam there will see that he did not write this law regarding all the doubts, but rather regarding partners who borrowed, where the owner was borrowed to one of them. Regarding this he wrote in this wording: "If he was negligent with it, behold, he pays." Thus far his words. And this is the explanation: Behold, partners who borrowed and the object was lost, one can claim the value of the entire object from each one—his half and also the second's half—by reason of guarantee, as written in siman 77. And regarding a guarantor, we maintain that one cannot claim from the guarantor until he first claims from the debtor, as written in siman 129. However, if the debtor has no property or he is violent, the Rambam holds that one may claim from the guarantor initially, as he wrote in chapter 25 of Malveh, law 3. And the Rambam ruled at the beginning of chapter 2 of Sechirut that a negligent party is a complete damager; see there. And according to this, it must be examined, for it is certainly true that the exemption of owners does not apply to a complete damager when he damaged explicitly, or stole, or deviated in his work, as will be explained in section 23. If so, why did the Torah exempt negligence with the owners? However, this is a decree of the Torah, that regarding the borrower himself, when it was with the owners, the Torah exempted negligence, for regarding himself he is not considered a literal damager. According to this, if this partner who borrowed and the owners were with him in his work, regarding himself he is exempt by the decree of the Torah even though he is a damager; but the second partner, perforce, will be liable for everything, for he was not with the owners in his work, and regarding him, the negligence of his partner is like a literal damager. And the Rambam treated him like one whose debtor has no property, where he collects from the guarantor. And this is what he meant: "If he was negligent with it"—meaning, if this partner who was with him in his work was negligent with it—"behold, he"—meaning the second partner—"pays." And this is not similar to what is written in siman 49, that whenever one cannot collect from the debtor, the guarantor is exempt. For here, even though he cannot collect from him because regarding himself he is not like a literal damager, nevertheless, regarding the second one he is like a literal damager. And if so, his law is only like one who has no property or is violent, where he collects from the guarantor. Nevertheless, for the practical law, many of the Rishonim disagree with him, as our teacher, the Beit Yosef, wrote. This is his wording: "And if he was negligent with it, some obligate and some exempt." Thus far his words. And according to what I have written, even the Rambam admits in all the doubts, except for partners.

One who borrowed from a woman who has a husband a beast of her nichsei melug, for which he consumes the produce, and the husband authorized her to lend it, and the owner of the beast was borrowed to the borrower for his work—this is not considered borrowing in the presence of the owners, for the acquisition of produce that the husband possesses is not considered like the acquisition of the body of the object, and he is not the owner of the beast. And similarly, a woman who borrowed a beast for the needs of her nichsei melug, and the owner of the beast was borrowed to the husband for his work—this is not considered borrowing in the presence of the owners. And even though in the Gemara this is also among the uncertainties, nevertheless, since in general we hold that the acquisition of produce is not like the acquisition of the body of the object, there is no uncertainty for us [the Rif].

One who says to his agent, "Go and lend yourself along with my cow," this is not a case of borrowing with the owners, and even though in the entire Torah a person's agent is like himself, here the Torah excluded this, as it is written "its owner" and "its owner" two times to teach that it is specifically him and not his agent. And some say that it is a legal doubt, and therefore when the agent of the lender is in the work of the borrower and an unavoidable accident occurred, one does not extract money due to doubt, and if he seized it, we do not extract it from him, as I wrote in section 8, see there [Shach]. But if he said to his Canaanite slave, "Go and lend yourself along with my cow," this is a case of borrowing with the owners, for the hand of the slave is like the hand of his master. And specifically when the slave was lent to him with the knowledge of his master, but if he was lent to him without his knowledge, he cannot obligate his master without his knowledge. And it appears to me that if he lent himself to the slave of the borrower without the knowledge of the borrower, it is a case of borrowing with the owners, for certainly it is pleasing to the borrower as it is a benefit for him [and so it appears from the Maggid Mishneh, see there].

Our sages, of blessed memory, said [ibid. 97a] that a teacher of children, and a planter who plants trees for the residents of the city, and the physician who lets blood for the residents of the city, and their scribe—all these and those similar to them—on the day that he sits to perform his work, if one borrowed or hired from one of these while he is engaged in their work, this is a case of shmirah b'bealim, and even if the shomer was negligent with it, he is exempt. However, if he borrowed or hired from them, he is liable, for they are not borrowed to him. And there are those who say that during the time appropriate for work, even though they are not engaged in it, nevertheless, regarding them it is considered shailah b'bealim, because he is not permitted to omit himself from that work at any time that they need him. And even if they must give him a wage, nevertheless, he is compelled to perform their work for them, for it is similar to two people who hired one man as a monthly laborer or a yearly laborer to perform for each of them the work that he needs; for during all of this time, it is shailah b'bealim for each of them, even at an hour when he is not engaged in the work of this borrower, because he is liened to him for all of this time. And the same law applies to all of these, even at an hour when they are not engaged in the work.

It is a simple matter that regarding any craftsman, while he is occupied with the craft of the employer, if he is a day laborer, if the employer borrowed from him, his law is that of borrowing in the presence of the owners, even if he is not occupied with the work at that moment. And if he is a contractor, his law is not that of borrowing in the presence of the owners except at the time he is occupied with the work; but at a time when he is not occupied, even though it is incumbent upon him to do it and finish it, nevertheless, since he can leave it for tomorrow, this is not like borrowing in the presence of the owners. And a wagon driver, during the entire time he is traveling, his law is that of borrowing in the presence of the owners regarding the one who travels with him, even at the time he stays in an inn, since he is compelled to travel with him immediately [it appears to me]:

It appears to me that if Reuven borrowed from Shimon, and Shimon's wife was engaged in Reuven's work, it is a case of borrowing with the owners, for his wife is as himself and is no worse than a Canaanite slave. However, his son and daughter, when they are engaged in Reuven's work, this is not borrowing with the owners, even when they are supported at his table and he sent them to do his work, for they are considered like others. And his wife as well, specifically when she is engaged in his work by the command of the husband, as with a slave, as I wrote in section 13.

It appears to me that regarding the permanent rabbi in a city, when the people of the city borrowed from him, they are exempt in cases of accident and negligence, for behold, he is with them in their work at all times when they need to ask a question or a matter of Torah. However, if the rabbi has a fixed time there to answer them, then outside of that fixed time, his status is not that of borrowing in the presence of the owners. And so too for the permanent judges in a city. But the rabbi and the judges who borrowed from them are liable; and even though the people of the city are commanded to do their work, nevertheless, since the custom is to give them a fixed salary, it is not called "with him in his work." And a communal prayer leader who was appointed, outside the time of prayer, they are not borrowed to one another, but at the time of prayer, they are borrowed to one another [Netivot HaMishpat]. And there is one who says that the communal prayer leader is borrowed to them even outside the time of prayer, but this does not seem so unless he has some other service that pertains all day to the work of the people of the city. And why did we say that the people of the city are not borrowed to the rabbi, yet to the communal prayer leader they are as if borrowed to him? Because at the time of prayer they are forced to be in the synagogue and are called as if borrowed to him, but to the rabbi they are not forced to ask questions or matters of Torah when they have nothing to ask or to adjudicate. And a synagogue attendant is as one borrowed to all the members of the synagogue, but they are not so to him. And a bathhouse attendant, at the time they are washing in the bathhouse, is as if with them in their work for those washing there at that time. And a manservant and maidservant in the house of a homeowner are called at all times "with him in his work," and so too people whom the homeowner hires for his business are at all times "with him in his work," and so too anything similar to this.

A teacher who teaches his students—if they must study with him whichever tractate he desires, and even if they began one tractate he may change it to another, then they are as if borrowed to him, for they are with him in his work. And if he borrowed from them, it is a case of "borrowing with the owners." And if he must study with them in whatever place they desire to study, then he is borrowed to them, even not during the time of study, if he is obligated to study with them at any time they desire. And if the matter depends on both of them, such as that they must finish the tractate they began and the teacher cannot change the tractate without the students' consent, nor the students without the teacher's consent, they are not considered borrowed to one another at all. And before the festivals, when it is the practice to lecture to the people on the laws of the holiday, he is borrowed to them.

Since we hold that when he was with the borrower in his work at the beginning of the borrowing, and with the renter at the beginning of the renting, and with the bailee at the beginning of the safeguarding, it is called "with him in his work" even if he subsequently withdrew from the work, therefore the sages of blessed memory said a further novelty in this matter: that even if the term of the borrowing that was "with the owners" ended and he did not return it to the lender, and he borrowed it from him for a further term not "with the owners," nevertheless everything continues under the name of the first borrowing which was "with the owners," and he is exempt even in the second borrowing since there was no interruption between the first and the second. And likewise, if he rented it "with the owners" and returned and rented it not "with the owners," the second is like the first as being "with the owners." And not only this, but even if the first which was "with the owners" was a borrowing and the second was a renting, since he did not return it in the meantime, renting and borrowing are related because the difference is not recognizable, for in both borrowing and renting he is using it, and in the second renting no new matter of liability was created upon him that did not exist at the time of the borrowing; on the contrary, his liability was lightened as he was exempted from liability for accidents, and everything follows the name of the first borrowing. But when the first was a renting "with the owners" and the second was a borrowing not "with the owners," the opinion of the Rambam in chapter 2 of Borrowing is that it is a legal doubt, for perhaps since the liabilities for accidents were increased upon him, the status of the first renting which was "with the owners" was nullified. And the opinion of the Rosh and the Tur is that this too is called "with the owners," since regarding theft and loss they have one law, it is considered "with the owners" regarding all liabilities; for if it were stolen from him he would be exempt due to the first renting which was "with the owners," therefore regarding accidents the law is also thus, since it is related to the first in some liabilities, it is related in all of them. And our teacher, the Rema, wrote thus in section 14. And from the Rambam it implies that even regarding theft it is a doubt for the reason we explained.

And not only is the second dependent on the first, but even the third and the fourth forever, when they share one designation. For example, if he borrowed it in Nisan with the owners, and before he returned it he borrowed it in Iyar without the owners, and before he returned it he borrowed it in Sivan without the owners, the borrowing with the owners of Nisan exempts even the borrowing of Sivan. But if the one of Iyar was lost through hiring, such as if he borrowed it in Nisan with the owners and in Iyar he hired it without the owners, and similarly in Sivan, the borrowing of Nisan does not exempt the hiring of Sivan. And even though the hiring of Iyar is exempt as I wrote, nevertheless, the hiring of Iyar does not have the power to also pull the hiring of Sivan, since it itself is only exempted through the dragging of Nisan, and we do not say "a dragging of a dragging" [see Shabbat 71a]. But when Sivan was a borrowing, it is a legal doubt, for perhaps the borrowing of Sivan is dependent on the designation of the borrowing of Nisan, and the borrowing returned to its place, and we do not need to depend it upon the hiring of Iyar. And similarly is the doubt regarding hiring and borrowing and hiring. And thus our sages, of blessed memory, said [ibid. 98b]: Borrowing with the owners, and he went back and hired it without the owners, and went back and borrowed it, what is the law? Does the hiring in between interrupt it, or does the borrowing return to its place? Therefore, borrowing with the owners and hiring without the owners and borrowing, or hiring and borrowing and hiring, is a legal doubt, and if he seized [the payment] we do not remove it from him [Tur]. But borrowing with the owners and afterwards hiring without the owners and afterwards another hiring, it appears that he is certainly liable for the third as I wrote [Hagahot Ashri ibid., and even though he later has a doubt regarding this, nevertheless from Rashi and Tosafot there it implies explicitly so, see there].

We do not say that the second is connected to the first except to be lenient for the borrower, but not to be stringent upon him. For example, if he borrowed it not in the presence of the owners, and before he returned it he borrowed it again in the presence of the owners, the first does not drag the second along to say that since initially it was not in the presence of the owners, it should not benefit from the fact that afterwards it was done in the presence of the owners. For we say this to be lenient and not to be stringent, as it is a decree of the Torah that whenever there are owners present, whether in the first or in the second, he is exempt [Tosafot ibid.].

Just as these laws were explained regarding a borrower and a renter, so too regarding guardians. If the status changed from an unpaid guardian to a paid guardian, it is like a change from a renter to a borrower, for his liability has increased regarding theft and loss. And when it changed from a paid guardian to an unpaid guardian, it is like from a borrower to a renter. And it appears to me that the first does not pull the second except for borrowing to renting or renting to borrowing, and likewise an unpaid guardian to a paid guardian and a paid guardian to an unpaid guardian. However, borrowing and renting to a guardian, or a guardian to borrowing and renting, does not pull, for they are two distinct matters and the difference between them is recognizable: for in borrowing and renting he uses it, but regarding guardians it is forbidden to use it.

The exemption of borrowing with the owners and all the guardians is only for theft, loss, accident, and negligence. However, misappropriation by guardians, and likewise by a borrower or a renter when they deviated from the work or stole a small amount, the exemption of owners does not exempt them, and their law is like that of robbers [Ktzot HaChoshen].

A husband regarding his wife's nikhsei milug, when he borrowed something from her or rented, is exempt from all laws of safeguarding; even if he was negligent with them and they were lost, he is exempt, for his wife is "with him in his work," as she is subordinated to him at every hour to do his work. However, she who borrowed from him is liable for the laws of safeguarding, for the husband is not "with her in her work," because even though he is subordinated to feed her and provide for her, he is not subordinated to her for work. But the husband, even if he does not consume her usufruct because he stipulated with her that he would not consume the usufruct, nevertheless is exempt from all laws of safeguarding because she is subordinated to his work. Therefore, even if they were rented or borrowed in his hand from her before he married her not "with the owners," and afterward he married her, from that hour onward it is considered borrowing or renting "with the owners," and the first borrowing or renting that was not "with the owners" is removed [Tur]. And the opinion of the Ra'avad in chapter 21 of Ishut, law 9, is that the husband is also called "with her in her work," see there.

A woman who borrowed an object for a set time and within that time married a husband, the husband uses it for all the days of its borrowing just as heirs use it for all the days of its borrowing, as I wrote in siman 341 [Nimukei Yosef]. And in this regard, it is not similar to an heir, for regarding an heir it was explained there that his law is like a shomer sachar, whereas the husband is not liable for anything because the husband regarding his wife's property has the law of a purchaser, as is written in Even HaEzer siman 90, and his law is like his own. This is the wording of the Rambam [ibid.]: A woman who borrowed and afterwards married, behold the husband is like a purchaser and is neither a shomer sachar nor a shoel; therefore, if the borrowed item is an animal and it died, the husband is exempt even though he uses it all the days of its borrowing, even if he was negligent, because he is like a purchaser, and the woman is liable to pay when she has money. But if she informed her husband that it is borrowed, behold he enters in her place. Thus far his words. For he holds that specifically when she did not inform him that it was borrowed, and he used it with the understanding that it was hers, and regarding hers his law is like a purchaser and he did not accept upon himself any guardianship at all. But when she informed him that it was borrowed, it is not relevant that he should be like a purchaser, for granted regarding her own property it is an enactment of the sages, but regarding the property of others, how could he be like a purchaser from her in a matter that is not hers, and who sold it to him? Therefore, when it is borrowed by him, he has her power and becomes like a shoel. And specifically that he used it after she informed him, or that he accepted upon himself to be the shoel, for if not so, we do not have the power to obligate him in guardianship against his will, as he can say, "I do not desire its guardianship nor its use." And according to this, in the opinion of the Rambam, his law is more stringent than an heir, for an heir is not liable for accidents and he is liable. And the reason is that just as regarding her own property he has all her rights until he becomes like a purchaser from her, so too regarding her borrowing, when he consented to its use, he is also like her and is liable for accidents. And even though an heir is not liable for accidents since he did not borrow it, an heir is different because he inherits by Torah law, but a husband regarding his wife's property, which is an enactment of the sages, it is impossible to enact that he should use it and not be liable for accidents [as appears to me in the explanation of his words; and see the Maggid Mishneh and the Lechem Mishneh].

And regarding what he wrote, that he is exempt from its guarding when he did not know it was borrowed because he is like a purchaser, and why he did not write the reason as being due to guarding with the owners, our teacher, the Rema, wrote that he is not exempted for this reason, for the object is not hers but belongs to the lender. And even though he does not know, nevertheless, how could we exempt him due to guarding with the owners when the owner of the object is not with him in his work? The primary reason for his exemption is since he believes it is hers, and regarding what is hers he is like a purchaser and did not accept guarding upon himself. And for this reason he wrote that a robber who deposited or lent the stolen object, even though he was in the work of the borrower, the borrower is liable for accidents, for it is not called borrowing with the owners except with the owner of the object himself. And specifically when he did not know it was stolen and it was before despair, for if it was after despair, the liability is toward the robber, as was written in siman 361, that when one ate it after despair the victim of the robbery collects from the robber, and all the more so when it was lost from him; and toward the robber it is guarding with the owners. And if he knew it was stolen, he is a borrower without the knowledge of the owners and is like a robber. But when he did not know it was stolen, even though he believed it belonged to the robber and it would be guarding with the owners, nevertheless, since in truth it is not his, it is not guarding with the owners and he is liable for all the laws of a borrower [see Netivot HaMishpat]:

And know that everything we have explained is according to the opinion of our teachers, the authors of the Shulchan Aruch, who followed the approach of the Rambam, of blessed memory. However, there are some of our teachers who compared this to heirs [the Ran and the Nimukei Yosef]; it is clarified from their words that even if the husband knew it was borrowed or rented, he does not become obligated in its safeguarding at all. And so it is implied from the Tur, who wrote regarding the words of the Rambam that the Ra'avad disagreed with him, for it is specifically when he accepted upon himself to be the borrower, but without this, he is not obligated in its safeguarding even though he uses it. And so it is implied from Rashi, Tosafot, and the Rosh [ibid. 96b], see there. And from the plain meaning of the Gemara there, this is proven, since it compares it to one who rents a cow from his fellow and lends it to another, which was explained in siman 307, and there the borrower knew it did not belong to the renter. And the reason appears to be as I wrote in siman 341 regarding heirs, that all the days of the borrowing or the renting it is as if acquired by him, and heirs inherit his right; likewise the husband, whose status is like a purchaser, it is as if he purchased it for this time and is exempt from all laws of safeguarding. And even though the heir is obligated like a shomer sachar, this is because the borrower died and it is impossible to leave it in their hands without any obligation of safeguarding at all, but here, the wife is alive and she shall pay when it is stolen or lost through an ones from him.

There are others among our teachers who say that even though he is exempt from guarding, nevertheless he is liable for negligence [Tosafot]. The reason is that since he knows that after the time it will return to the owners, even though he did not accept guarding upon himself, nevertheless it is impossible to exempt him when he is negligent with it, for negligence is close to intentional damage. For this reason they wrote that one who takes an animal for thirty days is a shomer chinam over it, for since he is obligated to return it after the thirty days, it is incumbent upon him at the very least not to be negligent with it. However, many of our teachers disagree on this and hold that he is not liable for negligence either [Ramban, Rashba, Ran, and Nimukei Yosef ibid.]. Their reason appears to be that since she is extant, she shall pay, and why should we obligate him in guarding when he did not accept it upon himself? According to this, one must wonder about our teachers, the authors of the Shulchan Aruch, who ruled like those who disagree and that he is exempt even from negligence, yet they wrote the law of one who takes for thirty days that he is liable for negligence. It must be said that they hold that although the husband is exempt, this is because she is extant and she shall pay, but regarding a buyer, everyone agrees. Know that this matter of one who takes for thirty days being liable for negligence applies when he did not speak in the language of a condition; but if he said, "on condition that you return it to me after thirty days," he is liable even for accidents, for when he did not return it, the condition was not fulfilled, as even if he consecrated it, it is not consecrated, as written in siman 241, and certainly when it is completely lost [Ketzot HaChoshen]. With what we have written, all the words of our teachers, the authors of the Shulchan Aruch, are settled [at which the Sma and the Taz wondered; and the words of the Shach and the Gra are clear; and regarding what they questioned against the Rosh and the Tur, it can be said that they also hold like the Tosafot, and what they wrote that regarding a husband with his wife's property there is no practical difference, that refers to her actual property, and thus their wording is precise; and delve into this].