The commandment to judge the case of the borrower: To judge the case of the borrower, meaning to say a man who borrows any object or animal from his fellow. And borrowing is without a wage at all, but rather, he is doing a kindness for him to do him this favor. And if a disagreement breaks out between them about the matter, we must judge the law that is stated about this [upon] them, as it is written in this section (Exodus 22:13), “And if a man borrows from his neighbor, etc.” And regarding the law of the borrower, the Torah made [him] liable even for things of duress (out of his control) — as it is his responsibility: Since he borrowed it and did not put out any thing of his for it, behold he is like one who took out a monetary loan — who if something beyond his control occurred to him could not be exempt from [paying the] creditor, with the claim that it was duress. And about the matter that he is exempt if borrowing in the presence of the owners, we can say according to the simple understanding that the Torah did not make the borrower liable since the owner of the vessel or of the animal is with him — as since he is there, he will guard what is his. And even though the borrower is [still] exempt after the owners left [him], if they were there at the time of the borrowing — it is possible to answer about this that the Torah did not want to give different measures for its words and state that if the owners stay long, he will be exempt, but if [only] a little, he will be liable. [Instead,] the Torah commanded more generally that so long as the owners are there at the time of the borrowing, he will be exempt. And this is the reason that they, may their memory be blessed, said (Bava Metzia 95b), that if he was there with him at the time of the borrowing — even if he was not with him at the time of it breaking or dying — he is exempt; but if he was with him at the time of the breaking or the dying but he was not there at the time of the borrowing, he is liable. As the procedure depends on the beginning of the matter. And this very same reason suffices for us regarding that which he is also exempt if he rents [something] in the presence of the owners.
The laws of the commandment are that which our Rabbis, may their memory be blessed, said (Bava Metzia 96b) that if the animal dies because of its work — and so [too,] if a tool breaks because of its work — that he is exempt, but if he deviated from that which the owners commanded him, even if it died because of work, he is liable; [that] if he took it to a place where onlookers are found, he is obligated to bring a proof about his claim that it died because of its work (Bava Metzia 83a); [that]when we exact payment from the one liable to pay, we estimate the payments like with damages (Bava Metzia 97a); that the borrower is obligated for its food from when he pulls it until the end of the borrowing (Ketuvot 34b); the law [if] their father left them a borrowed cow and it died; (Ketuvot 34b); the law of one who says to his fellow, “Let me borrow thing x by your goodness,” [such] that he can use it forever and return the fragments to him; how long is implied by one who borrows without specification and the many differences about this matter; which [items] can be borrowed by a teacher from his students (Bava Metzia 97a) and which can they borrow from him; the law of one who says to his agents, “Go lend out my cow”; one who borrows from a woman and she asks her husband; one who borrows from his wife; partners that borrowed from one another, or from someone else and it is borrowed by one of them; the laws of one who borrows a cow and sends it away; one who borrows it for a borrower — upon his command or not upon his command; and that which they said that the borrower is not allowed to lend it out. And the rest of its details are elucidated in the eighth chapter [of Bava] Metzia and also the eighth chapter of Shevuot. (See Tur, Choshen Mishpat 340-346.)
And [it] is practiced by males, as it is upon them to administer justice. And a court that transgresses it and does not adjudicate [these cases] has violated a positive commandment.
מִצְוַת בֵּית דִּין לָדוּן בְּדִין הַשּׁוֹאֵל – לָדוּן בְּדִין הַשּׁוֹאֵל, כְּלוֹמַר אָדָם שֶׁשָּׁאַל מֵחֲבֵרוֹ שׁוּם חֵפֶץ אוֹ בְּהֵמָה, וְהַשְּׁאֵלָה הִיא בְּלֹא שָׂכָר כְּלָל אֶלָּא שֶׁנִּתְחַסֵּד עִמּוֹ לַעֲשׂוֹת לוֹ טוֹבָה זוֹ, וְאַחַר כָּךְ אִם נָפַל מַחְלֹקֶת בֵּינֵיהֶם עַל הַדָּבָר, שֶׁנָּדוּן בֵּינֵיהֶם הַדִּין, שֶׁנֶּאֱמַר עַל זֶה כְּמוֹ שֶׁכָּתוּב בְּפָרָשָׁה זוֹ (שמות כב יג) וְכִי יִשְׁאַל אִישׁ מֵעִם רֵעֵהוּ וְגוֹ. וּבְדִין הַשּׁוֹאֵל חִיְּבָה הַתּוֹרָה אֲפִלּוּ הָאֳנָסִין לְפִי שֶׁבְּאַחְרָיוּתוֹ הִיא אַחַר שֶׁשְּׁאָלָהּ וְלֹא הוֹצִיא עָלֶיהָ דָּבָר מִשֶּׁלּוֹ, וַהֲרֵי זֶה כְּעֵין לֹוֶה מָעוֹת שֶׁאִם נֶאֶנְסוּ מִמֶּנּוּ לֹא יִפָּטֵר מִן הַמַּלְוֶה בְּטַעֲנַת אֹנֶס. וְעַל עִנְיַן שְׁאֵלָה בִּבְעָלִים שֶׁפָּטוּר, נוּכַל לוֹמַר לְפִי הַפְּשָׁט שֶׁהַתּוֹרָה לֹא חִיְּבָה הַשּׁוֹאֵל אַחַר שֶׁבַּעַל הַכְּלִי אוֹ הַבְּהֵמָה עִמּוֹ, דְּמִכֵּיוָן שֶׁהוּא שָׁם יִשְׁמֹר הוּא אֶת שֶׁלּוֹ וְאַף עַל פִּי שֶׁהַשּׁוֹאֵל פָּטוּר אַף לְאַחַר שֶׁהָלְכוּ הַבְּעָלִים מִכֵּיוָן שֶׁהָיוּ שָׁם בִּשְׁעַת שְׁאֵלָה, אֶפְשָׁר לְתָרֵץ בָּזֶה שֶׁלֹּא רָצְתָה הַתּוֹרָה לָתֵת הַדְּבָרִים לְשִׁעוּרִין וְלוֹמַר אִם יִשְׁהוּ שָׁם הַבְּעָלִים הַרְבֵּה יְהֵא פָּטוּר הַשּׁוֹאֵל וְאִם מְעַט יְהֵא חַיָּב, וְצִוְּתָה הַתּוֹרָה דֶּרֶךְ כְּלָל דְּכָל שֶׁהַבְּעָלִים שָׁם בִּשְׁעַת שְׁאֵלָה, יְהֵא פָּטוּר. וְזֶהוּ הַטַּעַם שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (ב"מ צה, ב) שֶׁאִם הָיָה עִמּוֹ בִּשְׁעַת שְׁאֵלָה אַף עַל פִּי שֶׁלֹּא הָיָה עִמּוֹ בִּשְׁעַת שְׁבוּרָה וּמֵתָה פָּטוּר. אֲבָל הָיָה עִמּוֹ בִּשְׁעַת שְׁבוּרָה וּמֵתָה וְלֹא הָיָה עִמּוֹ בִּשְׁעַת שְׁאֵלָה חַיָּב, כִּי בִּתְחִלַּת הַמַּעֲשֶׂה הָעִנְיָן תָּלוּי. וְזֶה הַטַּעַם בְּעַצְמוֹ מַסְפִּיק לָנוּ בִּשְׂכִירוּת הַבְּעָלִים שֶׁגַּם כֵּן פָּטוּר.
The commandment to judge the case of the borrower: To judge the case of the borrower, meaning to say a man who borrows any object or animal from his fellow. And borrowing is without a wage at all, but rather, he is doing a kindness for him to do him this favor. And if a disagreement breaks out between them about the matter, we must judge the law that is stated about this [upon] them, as it is written in this section (Exodus 22:13), “And if a man borrows from his neighbor, etc.” And regarding the law of the borrower, the Torah made [him] liable even for things of duress (out of his control) — as it is his responsibility: Since he borrowed it and did not put out any thing of his for it, behold he is like one who took out a monetary loan — who if something beyond his control occurred to him could not be exempt from [paying the] creditor, with the claim that it was duress. And about the matter that he is exempt if borrowing in the presence of the owners, we can say according to the simple understanding that the Torah did not make the borrower liable since the owner of the vessel or of the animal is with him — as since he is there, he will guard what is his. And even though the borrower is [still] exempt after the owners left [him], if they were there at the time of the borrowing — it is possible to answer about this that the Torah did not want to give different measures for its words and state that if the owners stay long, he will be exempt, but if [only] a little, he will be liable. [Instead,] the Torah commanded more generally that so long as the owners are there at the time of the borrowing, he will be exempt. And this is the reason that they, may their memory be blessed, said (Bava Metzia 95b), that if he was there with him at the time of the borrowing — even if he was not with him at the time of it breaking or dying — he is exempt; but if he was with him at the time of the breaking or the dying but he was not there at the time of the borrowing, he is liable. As the procedure depends on the beginning of the matter. And this very same reason suffices for us regarding that which he is also exempt if he rents [something] in the presence of the owners.
דִּינֵי הַמִּצְוָה, מָה שֶׁאָמְרוּ רַבּוֹתֵינוּ זִכְרוֹנָם לִבְרָכָה (ב"מ צו, ב) שֶׁאִם מֵתָה הַבְּהֵמָה מֵחֲמַת מְלָאכָה וְכֵן אִם נִשְׁבַּר הַכְּלִי מֵחֲמַת הַמְּלָאכָה שֶׁפָּטוּר, וְאִם שִׁנָּה מִן הַדֶּרֶךְ שֶׁצִּוָּהוּ הַבְּעָלִים אֲפִלּוּ מֵתָה מֵחֲמַת הַמְּלָאכָה שֶׁחַיָּב, וְאִם (שם פג, א) הוֹלִיכָהּ בְּמָקוֹם שֶׁהָרוֹאִים מְצוּיִים, חַיָּב לְהָבִיא רְאָיָה עַל טַעֲנָתוֹ שֶׁטָּעַן שֶׁמֵּחֲמַת מְלָאכָה מֵתָה, וּכְשֶׁמְּשַׁלֵּם מִי שֶׁחַיָּב לְשַׁלֵּם שָׁמִין (שם צז, א) לוֹ תַּשְׁלוּמִין כְּמוֹ בִּנְזָקִין, וְשֶׁחַיָּב הַשּׁוֹאֵל בִּמְזוֹנוֹתֶיהָ מִשֶּׁמְּשָׁכָהּ (כתובות לד, ב) עַד סוֹף הַשְּׁאֵלָה, וְדִין (שם) הִנִּיחַ לָהֶם אֲבִיהֶם פָּרָה שְׁאוּלָה וּמֵתָה, וְדִין הָאוֹמֵר לַחֲבֵרוֹ הַשְׁאִילֵנִי דָּבָר פְּלוֹנִי בְּטוֹבָתְךָ (ב"מ קג, א) שֶׁמִּשְׁתַּמֵּשׁ בּוֹ לְעוֹלָם וּמַחֲזִיר לוֹ שְׁבָרָיו. וְהַשּׁוֹאֵל סְתָם לְכַמָּה זְמַן מַשְׁמַע, וְהַחִלּוּק שֶׁיֵּשׁ בִּדְבָרִים רַבִּים בְּעִנְיָן זֶה, וְאֵי זֶה רַב נִשְׁאַל לְתַלְמִידָיו (שם צז, א) וְאֵי זֶהוּ שֶׁהֵם שְׁאוּלִים לוֹ, וְדִין הָאוֹמֵר לִשְׁלוּחוֹ צֵא וְהִשָּׁאֵל עִם פָּרָתִי, וְהַשּׁוֹאֵל מִן הָאִשָּׁה וְנִשְׁאַל לְבַעְלָהּ, אוֹ הַשּׁוֹאֵל מֵאִשְׁתּוֹ, וְשֻׁתָּפִין שֶׁשָּׁאֲלוּ זֶה מִזֶּה אוֹ מֵאַחֵר וְנִשְׁאַל לְאֶחָד מֵהֶם, וְדִינֵי הַשּׁוֹאֵל פָּרָה וְשִׁלְּחָהּ הַמַּשְׁאִיל בְּמִצְוַת הַשּׁוֹאֵל אוֹ שֶׁלֹּא בְּמִצְוָתוֹ. וּמָה שֶׁאָמְרוּ שֶׁאֵין הַשּׁוֹאֵל רַשַּׁאי לְהַשְׁאִיל, וְיֶתֶר פְּרָטֶיהָ, מְבֹאָרִים בִּמְצִיעָא פֶּרֶק שְׁמִינִי, וּבִשְׁבוּעוֹת גַּם כֵּן פֶּרֶק שְׁמִינִי [ח"ה ש"מ עד שמ"ו].
The laws of the commandment are that which our Rabbis, may their memory be blessed, said (Bava Metzia 96b) that if the animal dies because of its work — and so [too,] if a tool breaks because of its work — that he is exempt, but if he deviated from that which the owners commanded him, even if it died because of work, he is liable; [that] if he took it to a place where onlookers are found, he is obligated to bring a proof about his claim that it died because of its work (Bava Metzia 83a); [that]when we exact payment from the one liable to pay, we estimate the payments like with damages (Bava Metzia 97a); that the borrower is obligated for its food from when he pulls it until the end of the borrowing (Ketuvot 34b); the law [if] their father left them a borrowed cow and it died; (Ketuvot 34b); the law of one who says to his fellow, “Let me borrow thing x by your goodness,” [such] that he can use it forever and return the fragments to him; how long is implied by one who borrows without specification and the many differences about this matter; which [items] can be borrowed by a teacher from his students (Bava Metzia 97a) and which can they borrow from him; the law of one who says to his agents, “Go lend out my cow”; one who borrows from a woman and she asks her husband; one who borrows from his wife; partners that borrowed from one another, or from someone else and it is borrowed by one of them; the laws of one who borrows a cow and sends it away; one who borrows it for a borrower — upon his command or not upon his command; and that which they said that the borrower is not allowed to lend it out. And the rest of its details are elucidated in the eighth chapter [of Bava] Metzia and also the eighth chapter of Shevuot. (See Tur, Choshen Mishpat 340-346.)
וְנוֹהֶגֶת בִּזְכָרִים, שֶׁעֲלֵיהֶם לַעֲשׂוֹת דִּין. וּבֵית דִּין הָעוֹבֵר עָלֶיהָ וְלֹא דָּן, בִּטֵּל עֲשֵׂה.
And [it] is practiced by males, as it is upon them to administer justice. And a court that transgresses it and does not adjudicate [these cases] has violated a positive commandment.