QUESTION: The Gemara records a dispute about the law in the case of one who appointed an agent in front of witnesses. RASHI (DH Shali'ach) explains that the case involves a lender who appointed an agent in the presence of witnesses to accept the repayment of the loan from the borrower, who indeed gave the money to the agent. Rav Chisda rules that the agent has the Halachic status of a Shali'ach. Rabah rules that he does not have the status of a Shali'ach. Rashi (DH Havei) explains that according to Rav Chisda, if the agent lost the money during his return to the lender due to circumstances beyond his control, the borrower has no obligation to pay again, since he fulfilled his obligation when he gave the money to the agent of the lender.

The Gemara explains that Rav Chisda's reasoning is based on the fact that the lender troubled himself to appoint the agent in the presence of witnesses. He did so in order that the money be considered in the possession of the agent. Rabah, however, says that the reason the lender appointed the agent in front of witnesses was merely to indicate to the borrower that the agent is a reliable person, and to show the borrower that he recommends the agent as a reliable person with whom to send the repayment of the loan. However, the lender does not actually accept responsibility for anything that may happen to the money during the journey.

Why, according to Rabah, is the borrower still liable when he gives the payment to an agent whom the lender trusts? Since the lender himself indicated that the agent is reliable, he cannot claim that the borrower acted improperly when he gave the money to the agent. The Gemara in Bava Metzia (36a) describes a case in which one may make such a claim. When an appointed Shomer (guardian) of an object gives the object to a second Shomer, one opinion maintains that the first Shomer is liable if something happens to the object because the original owner may claim, "I did not want my object to be in the hands of someone else." (Indeed, it is Rabah himself who gives this reasoning there.) This argument does not apply in the case of the Gemara here, however, because the lender clearly showed that he does want the money to be given to the agent. Even Rabah should agree that the borrower is exempt for any uncontrollable circumstance that occurs while the money is in the hands of the agent.

(a) TOSFOS (DH Hachi) answers that according to Rabah, even if the borrower himself personally brings the money to return to the lender and loses the money on the way, he is still liable to pay. The Mishnah later (118a) states that when one deposits an object with his friend in a populated area, he may not return the object to the owner in the desert. Tosfos explains that the Mishnah means that the Shomer must return the object to the owner in the same place in which he received it, and he certainly cannot return it to him in the desert. (Tosfos implies that the borrower is considered negligent because he allowed the agent (or himself) to enter an area where an Ones was likely to occur. Accordingly, if the agent or the borrower was not in such an area and the money still became lost as a result of an Ones, the borrower indeed might not be liable.)

(See PNEI YEHOSHUA who discusses whether Tosfos refers only to a case in which the borrower is returning an object deposited with him, or even to a case in which he is returning money that he borrowed. If Tosfos refers only to a case of a deposit, it follows that his question does not apply according to Rashi's understanding of the Sugya, that the case refers to a borrower who returns a monetary loan.)

(b) The RASHBA answers that, indeed, the owner of an object deposited with a Shomer has no claim on the Shomer who gave his object to a second Shomer whom the owner indicated he trusted. However, this exemption applies only where the first Shomer would have been exempt had the same thing happened to the object while it was in his hands. If, however, the first Shomer would have been liable and the second Shomer exempt, the owner may claim that the first Shomer did not have the right to decrease the level of liability, even if he gave the object to a person whom the owner trusts. For example, if the first Shomer was a Shomer Sachar (a paid guardian) who gave the object to either a Shomer Sachar or Shomer Chinam (unpaid guardian) and an Ones occurred to the object, the first Shomer is exempt, because the owner trusts the second Shomer, and both a Shomer Sachar and Shomer Chinam are exempt from liability in a case of Ones.

However, if the first Shomer was a Shomer Sachar and he gave the object to a Shomer Chinam and the object was stolen, the first Shomer must pay, because a Shomer Sachar is liable for theft while a Shomer Chinam is exempt. Even though the owner trusts the agent, since the first Shomer lowered the level of liability for the object when he gave it to the Shomer Chinam, he cannot exempt himself from the liability for theft for which he would have been responsible had he kept the object in his guardianship.

Accordingly, Rabah maintains that although the agent is reliable, giving the object to him decreases the level of accountability to the owner, and therefore the owner may claim the money from the first Shomer.

(See CHAZON ISH (CM 1:28) who writes that the Rashba refers specifically to a case of a deposited object. In contrast, when the borrower received money, everyone agrees that he is obligated to ensure that the money reaches the lender and that it does not help to hand it to a Shali'ach.) (D. Bloom)

QUESTION: Rav Yehudah in the name of Shmuel says (104a) that one may not give over money on the basis of a Deyukni even if witnesses are signed on it. RASHI (DH b'Deyukni) explains that a person deposited his money with a Shomer (guardian) and now wishes to appoint a Shali'ach (agent) to retrieve the object. He gives the Shali'ach identifying signs which the agent uses to prove that he is acting on behalf of the owner of the money. In addition, the owner sends a letter with the Shali'ach which instructs him to "go and appear in front of the Shomer, and he will give you the money which he is holding for me," and he affixes his signature to the document. This letter is called a Deyukni. Shmuel rules that even if witnesses sign the letter to verify it, the Shomer is not obligated to hand over the money to the Shali'ach.

Rebbi Yochanan disagrees with Shmuel and maintains that if witnesses sign the document, the Shomer may rely on the Deyukni. Consequently, when he sends the money with the Shali'ach, he becomes exempt from all of his obligations as though he has returned the money to the owner himself.

According to Shmuel, who rules that even when witnesses sign the Deyukni the Shomer is not obligated to hand over the money to the Shali'ach, when can a Shomer ever return money to its owner by giving it to a third party? The Gemara answers that there is a case in which the Shomer may return money by giving it to a third party. The Gemara relates that Rav Yosef bar Chama owed money to Rebbi Aba. Rebbi Aba said to Rav Safra, "When you go there (to the town of Rav Yosef bar Chama), please bring my money to me." When Rav Safra went to the town of Rav Yosef, Rav Safra's son, Rava, asked his father if Rebbi Aba had written for him "Hiskabalti" (a commitment that "when Rav Safra receives the money, I hereby consider it as though I had received it myself").

Rav Safra answered that he had no such commitment in writing. He was told that he should go back to Rebbi Aba and receive a written document of "Hiskabalti." Afterwards, he was told that even if he had a written document of "Hiskabalti" it would not be of help, because Rebbi Aba might die before the money was received, in which case the debt would belong to his heirs and the deceased Rebbi Aba's word of "Hiskabalti" would be worthless.

RASHI (DH Shechiv) writes that Rebbi Aba was old. If he would die before Rav Safra delivers the money to him, Rav Safra would no longer be his Shali'ach. Consequently, if the money would be stolen from Rav Safra on the journey, the heirs of Rebbi Aba would claim it from Rav Safra.

The Gemara's concern that the owner of the money might die before the money reaches him appears to contradict a principle taught by the Mishnah in Gitin (28a). The Mishnah there teaches that a person is always assumed to be alive until there is evidence otherwise. That is, a person has a "Chezkas Chai" -- a Chazakah that he is still alive. Since Rebbi Aba was alive when he appointed the Shali'ach, why should there have been any concern that he might die while Rav Safra was en route? The Chazakah should determine that he is alive! Even though Rebbi Aba was old, the Mishnah in Gitin (28a, see also Rashi there) states that a Shali'ach who brings a Get on behalf of a man who was sick or old when the Shali'ach left him nevertheless may give the Get to the wife, because he may rely on the Chazakah that the husband is still alive. The Gemara there (28b) states, "We are not concerned that he may have died." Why, then, is the Gemara here concerned that the owner of the money might die before the Shali'ach returns the money to him?

ANSWER: The KETZOS HA'CHOSHEN (122:1) answers this question based on the words of TOSFOS in Bava Metzia (39b, DH Dilma). The Gemara there relates that an elderly woman who had three daughters was captured together with one of her daughters. One of the other two daughters died and left a baby boy. Abaye discussed what should be done with the property of the elderly woman. He asserted that it could not be given to the remaining sister based on the assumption that the elderly woman died in captivity (in which case the baby boy would be entitled to a portion of her possessions according to the laws of inheritance), because there is a rule that Beis Din may not give the property of a minor to a close relative to watch (as that relative might keep it for himself).

Tosfos there asks, why should we assume that the elderly woman died, when the Chazakah tells us to assume that she is still alive? Tosfos writes (in his second answer) that in fact there is no general rule that we do not take into account the possibility that a person might have died. Rather, in the case of the Shali'ach who brings a Get on behalf of an old or sick man, there is a special reason why the husband is assumed to be alive at the time the Shali'ach gives over the Get. If the Chachamim would have taken into account the possibility that the man died before the Get was given, the wife would have been deemed an Agunah who cannot remarry. (In the event that the man had no children, the woman would have to perform Yibum or Chalitzah with her husband's brother.) Since the Chachamim are lenient in cases of Agunah, they permit her to receive the Get from the Shali'ach and they do not suspect that her husband died. In contrast, in the case of the captured woman, the Chachamim rule stringently in order to protect the property of the orphan. Since the woman might have died, the Chachamim do not put his property in danger by entrusting it with a close relative (the older sister) who might claim later that the property belongs to her.

The Ketzos ha'Choshen explains the Gemara here in a similar way. The Chachamim seek to protect the Shomer, and therefore they suspect that Rebbi Aba may have died. If Rebbi Aba died, the Shomer will be liable since the orphans will claim the money from him. (D. Bloom)