Editor’s note: Parties to a dispute are almost always supposed to seek compromise (peshara) rather than strict din. In fact, the Gemara (Bava Metzia 30b) states that Yerushalayim was destroyed because cases were decided on din (rather than lifnim meshuras hadin). We encourage readers, therefore, to read this column as a source of halachic knowledge, not a guide for ideal Torah behavior.
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“Can you lend me $100 till the end of the week,” Ariel asked his roommate, Moshe.
“Sure,” said Moshe, “but I will need the money back on Friday.” He gave Ariel $100.
On Wednesday afternoon Moshe wasn’t feeling well and decided to go home for the remainder of the week. He sent a message to Ariel: “I had to go home. Please send the money with someone coming to my area for Shabbos.”
Ariel asked around and found Chaim, who lived down the block from Moshe. “Please return this $100 to Moshe,” Ariel said. “He needs it back on Friday.”
On the way home, Chaim and two other friends were mugged and their wallets were stolen.
A day later, Ariel, who heard of the incident, broke the news to Moshe. “I sent the money with Chaim, but he was mugged,” he said.
“Well, you still owe me $100,” Moshe said.
“It’s not my fault that Chaim was mugged,” replied Ariel, “and I did exactly what you told me to do.”
“That may be, but it’s still your responsibility to pay me back,” replied Moshe.
But Ariel wouldn’t give in, so the two roommates approached Rabbi Dayan. After hearing both sides of the debate, Rabbi Dayan said, “A borrower is liable, even for circumstances beyond one’s control, until the money is returned to the lender or his agent,” replied Rabbi Dayan. [Choshen Mishpat 120:1]
“Nonetheless, if the lender instructed the borrower to return the money via someone else, that person becomes the lender’s agent, and the borrower is no longer liable,” continued Rabbi Dayan. “The agent does not have to be appointed directly or before witnesses.” [Choshen Mishpat 121:1; 182:1]
“Does the lender have to speak with the agent or with the borrower?” asked Moshe.
“No, even if he sends a letter instructing the borrower to send the money with so-and-so, that person becomes his agent and the borrower is exempt,” answered Rabbi Dayan. “The same is true if he sends a message by e-mail, text message or WhatsApp.” [see Sma 121:5]
“Does the lender have to specify the agent?” asked Ariel. “What if he instructed the borrower to send the money with whomever he wants, which is what happened in this instance?”
“No. The person is considered the agent of the lender since the borrower followed his instructions, and the borrower is no longer liable,” answered Rabbi Dayan. “That is, provided that the borrower sent the money with a reliable person and in a normal manner. If the borrower sent it – without specific permission – with someone suspect, a minor, or a non-Jew, or through a dangerous area, he is considered negligent and remains liable.” [Shach 121:6]
“Chaim was not mugged in a dangerous area,” acknowledged Moshe. “Muggings are rare where I live.”
“In that case,” ruled Rabbi Dayan, “since Moshe instructed Ariel to send the money with someone and it was sent with someone reliable, Ariel is not responsible to pay Moshe $100.”
