Rafi had lent Boruch, who lived hundreds of miles away, an expensive textbook to study from for his board exams.
After successfully passing the boards, Boruch thanked Rafi for lending him the textbook.
“Thanks a million for your book,” Boruch wrote to him. “Any ideas how I can send it back to you?”
“My neighbor Thomas Angelo has a conference in your area next month,” Rafi replied. “Send it with Thomas.”
The following month, Boruch gave the textbook to Thomas, who put it in his suitcase.
During the flight home, the suitcase was lost.
“I had valuable items in the suitcase,” Thomas told Rafi. “The airline didn’t cover it all, so I certainly cannot cover the book that Boruch sent.”
“Unfortunately, Thomas’s suitcase was lost en route,” Rafi wrote to Boruch. “He didn’t get enough to cover the book, so I have to ask you to pay for it.”
“I finished with the book!” replied Boruch. “You wrote to send it with Thomas, which I did. I am no longer liable for it!”
“That’s not clear,” argued Rafi. “First of all, although I wrote to send the book with Thomas, I never wrote that you should thereby be exempt. Second, Thomas is not Jewish, so he cannot be an agent to accept the book on my behalf. Therefore, you remain responsible for it until you return it to me or my agent.”
“I know one thing,” replied Boruch. “You wrote to give the book to Thomas. If I did what you instructed – how can you expect me to remain liable?!”
The two made a conference call to Rabbi Dayan and asked:
“Is Boruch liable for the lost textbook?”
“When the lender instructs the borrower to return his item or money through someone else,” replied Rabbi Dayan, “the Rishonim derive from the Mishna (B.M. 98b) that the borrower is exempt if the messenger loses it.”
Shulchan Aruch rules, based on the Rif (B.K. 37b), that even if the lender did not speak directly with the borrower but rather instructed him in writing or via another person, he is exempt (C.M. and Gra 121:1).
Furthermore, Shulchan Aruch rules – following Sefer HaTerumos (50:3:7), against the Ramban – that the borrower is exempt even if the designated messenger is a non-Jew or a minor, who cannot be appointed formal agents and cannot acquire on behalf of the lender (Shach 121:4).
Moreover, Sma (120:1, 121:3) writes that the lender does not have to explicitly state that the borrower will thereby be exempt. Although the Gemara (Gittin 78b) teaches that if the lender says to throw the money to him, the borrower remains liable until it reaches the lender’s hands, there we can understand that he expected the borrower to continue guarding the item. This is not the same as when the messenger is to take the money. Alternatively, Nesivos (121:4) explains that the borrower is exempt here because the lender takes responsibility (arev) when the borrower hands over the money to the messenger (see Pis’chei Choshen, Halvaah 5:20:[56]).
In addition, there is a dispute in the Gemara (B.K. 104) regarding a lender who appointed an agent before witnesses to receive payment if the borrower wishes to give it to him, but did not instruct the borrower to give the messenger the money. The Rishonim rule that the borrower is exempt in this case as well. However, if the lender simply told the agent to present himself to the borrower should the borrower want to send the money with him, but he did not appoint him before witnesses or directly instruct the messenger to accept the money – then the borrower remains liable (C.M. 121:2; Shach 121:10; Pischei Choshen, Halvaah 5:23).
“Thus,” concluded Rabbi Dayan, “since Rafi wrote to Boruch to give Thomas the book, Boruch is exempt.”
Verdict: A borrower who sends an item or money as per the lender’s instructions is exempt if the messenger loses the item or money. Most authorities exempt the borrower even if the messenger is non-Jewish, and even if the lender didn’t explicitly state that the borrower is thereby exempt.
