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Shabbat, 28 Tammuz 5774 / July 26, 2014
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Rambam - 1 Chapter a Day

She'elah uFikkadon - Chapter 2

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She'elah uFikkadon - Chapter 2

Halacha 1

When a person borrows an article while the owner is working with him, he is not liable, even if the article that he borrowed is stolen or lost through negligence, as Exodus 22:14 states: 'If the owner is with him, he need not make restitution.' This applies, provided he asked the owner to work with him at the time he borrowed the article, as we have explained.

This leniency applies whether the borrower asked the owner to work for him as a favor or hired him, and whether he asked him to perform the same work as he performs with the article, he asked him or hired him to perform another task, or he had him perform any task in the world. Even if he told a colleague, 'Give me a drink of water,' and the person asking for the water asked to borrow his colleague's animal, if the owner gives him a drink and lends him the animal, it is considered as if he lent him the animal while 'with the owner,' and he is not liable.

If the borrower performed meshichah with the animal first, and afterwards the owner gave him to drink, this is not considered to be borrowing an article while the owner is working with the borrower. The same principles apply in all analogous situations.

Halacha 2

When a person lent or rented out his animal to carry a burden and went out to help the borrower or the renter to help him load his burden on it, this is considered to be borrowing an article while the owner is working with the borrower. If he goes out with him to inspect the burden and to see that he was not overloaded, it is not considered borrowing an article while the owner is working with the borrower.

Halacha 3

The following rules apply with regard to a teacher of young children, a person who plants trees for a city, a bloodletter for the city and their scribe. On the day any one of these individuals - or a person in a similar position - sits to perform the work of the city's inhabitants, if he lends or rents out an article to any of the people whose work he is performing, it is considered as if the owner is working with the borrower. Even if the watchman was negligent, he is not liable. If, however, one of these individuals borrowed or rented an article from one of the inhabitants of the city, he is liable in the event of damages. For they do not perform work for him.

Halacha 4

When a teacher reads to his students at will, at the time he desires, whichever tractate he desires, they are obligated to come to him at all times, and even if he has already started studying one tractate with them, he has the license to switch from tractate to tractate, they are considered to be at his command, and he is not at their command. On the day of public study, when everyone comes to hear about the matters that concern the festival, he is considered to be at their command, and they are not at his command.

Halacha 5

When a person tells his agent: 'Go out and work together with my cow,' it is not considered as if the owner is working with the borrower. This is intimated by Exodus 22:14: 'If the owners are with him, he need not make restitution.' The wording implies that verse refers to the owners themselves, and not their agents.

If by contrast a person tells his Canaanite servant: 'Go out and work together with my cow,' it is considered as if the owner is working with the borrower. The rationale is that a Canaanite servant is considered an extension of the physical person of his master.

If the servant goes to work for the borrower without his master's consent, it is not considered as if the owner is working with the borrower.

Halacha 6

When a person borrows an article from a woman, and her husband is performing a task for the borrower, it is not considered as if the owner is working with the borrower. The rationale is that the right to benefit from property is not equivalent to ownership of the property itself. And a woman's husband is entitled only to benefit from her property. He is not the owner.

Halacha 7

When a husband borrows property from his wife or when partners borrow property from each other, it is considered as if the owner is working with the borrower. If one partner says to the other, 'Lend me property today, and I will lend you tomorrow,' it is not considered as if the owner is working with the borrower.

Halacha 8

When a person borrows property from a partnership and also asks one of the partners to work for him, or if partners borrow property and one of the partners asks the owner to work for him, there is an unresolved doubt whether it is considered as if the owner is working with the borrower or not. Therefore, if the animal dies, the borrower is not required to make restitution. If, however, the owner seizes the value of the article from property belonging to the borrower, it should not be expropriated from his possession. If the borrower was negligent, he is required to make restitution.

Halacha 9

There is an unresolved doubt whether a person who borrows an animal to sodomize it, or to create an impression, or to perform work that is worth less than a p'rutah, or borrowed two cows to do work that is worth one p'rutah while the owner is working with him is considered as an instance when an object is borrowed while the owner is working with the borrower or not.

Halacha 10

If a person borrowed an animal while the owner was working for him, and before he returned it, rented it for an additional period while the owner was not working for him, he is not liable if the animal is not returned. The rental is dependent on - and considered as an extension of - the borrowing.

There is, by contrast, an unresolved doubt with regard to all of the following situations:

The person rented the animal while the owner was working for him, and before he returned it, borrowed it for an additional period while the owner was not working for him.

He borrowed an animal while the owner was working for him, and before he returned it, rented it for an additional period while the owner was not working for him and then borrowed it again while the owner was not working for him.

Or he rented an animal while the owner was working for him, and before he returned it, borrowed it for an additional period while the owner was not working for him, and then rented it again while the owner was not working for him.

Halacha 11

When a woman borrows an article from one person and then marries another man, her husband is considered a purchaser - not a paid watchman nor a borrower. Accordingly, if the borrowed article was an animal that died, the husband is not liable even though he used it throughout the time that it was borrowed.This ruling applies even if he was negligent. The rationale is that he is considered as a purchaser.

When the woman receives money, she is obligated to make restitution. If she notified her husband that the article is borrowed, he undertakes her responsibility.

In all the situations that we have defined as borrowing while the owner is working for the borrower, if a renter or a paid watchman were involved, it would be considered as a rental while the owner is working for the renter, and he would not be held liable. Conversely, in all the situations that are not defined as borrowing while the owner is working for the borrower, if a renter or a paid watchman were involved, it would not be considered a rental while the owner is working for the renter. And with regard to all the situations for which there are unresolved doubts whether it is considered to be borrowing while the owner is working for the borrower; so, too, there are unresolved doubts with regard to rentals.

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