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Hilchos Choshen Mishpat

Volume I : Number 34

Liability Of A Sho'el (Borrower)


Question:

Reuven borrowed a bicycle from Shimon for the day. As he was driving at high speed down a road, a child jumped into the path of the bike. Reuven swerved to avoid the child and collided with a tree. Although Reuven was unhurt, the frame of the bicycle was bent and permanently damaged.

Is Reuven obligated to pay Shimon for the bicycle?


Answer:

  1. The Torah obligates a borrower to repay the owner of a borrowed object even if it was stolen or damaged through no fault of his own (Onais). However, if the item was damaged in the course of normal usage (Maisah Machmas Melacha), he is exempt.

  2. There is disagreement among the Rishonim whether our case can be classified as damage in the course of normal usage, or must be considered a regular case of inadvertent damage for which a borrower is liable. Therefore, a Bais Din could not obligate Reuven to pay Shimon for the bicycle, and Reuven has no obligation even in the Heavenly Courts (B'Dinei Shamayim), since the Halacha in this case is in doubt. However, if Shimon would owe Reuven money, he may retain the equivalent of the value of the bike for himself.


Sources:

The Ramban (Bava Metziah 96b D'H Hah D'Amrinun) explains that the reason why a borrower is not responsible to pay for damage incurred during the course of normal usage is because the lender shares a degree of responsibility for lending something that is actually not fit for use. Although he may not have known this at the time of the loan, he has still caused his own loss by giving the borrower permission to use something that is not fit for normal usage. This opinion is quoted by the Rema in Choshen Mishpat 340:3.

According to this opinion, a borrower would only be exempt if the damage during normal usage had come from the wear and tear of the borrowed item itself. If there was an external factor that caused the damage during normal usage, the borrower would be obligated to pay, just as he would have to pay for any inadvertent damage.

However, the Ramah states that even if the damage was caused by an external factor, as long as it occurred during the time of usage that it was borrowed for, the borrower is exempt. Only if the damage would occur when he is not using the item for the purpose that he borrowed it for would he be liable for an Onais. This opinion is stated in the Shulchan Oruch (Choshen Mishpat 340:3) as the Halacha. The rationale behind this is that the reason behind the exemption of Maisah Machmas Melacha is because the owner specifically gave it to the borrower to use under normal conditions, not to store in his home. He understands that there are risks involved in allowing his item to be used by others. The understanding is, therefore, that the borrower will not be liable for any damage that occurs under normal usage.

The Ramah extrapolates from this that if a person were to borrow a horse to ride to a certain place, and was attacked by armed robbers or wild animals during the trip, and the horse died, the borrower is exempt. Since at the time of the death of the horse the borrower was using it for what it had been borrowed, this is considered damage during the course of normal usage, despite the fact that there was an external factor involved.

In light of this, in the case of our question, according to the opinion of the Ramban, Reuven would be required to pay Shimon for the bicycle since the damage was the result of an external factor, although it occurred during the time of normal usage. According to the Ramah, Reuven has no obligation to pay for the bicycle at all, since it was damaged during the course of normal usage. To quote the Bais Yosef in explaining the opinion of the Ramah, "The lender knew that the roads are fraught with danger, and lent it to the borrower with this understanding!"

Feedback is appreciated! It can be sent toatendler@torah.org.


Business-Halacha is sponsored this week by David Samet, in memory of his grandmother Gittel Bas Yitzchok Dovid Haleyvei a"h, whose yahrtzeit is the seventh day of Chanukah. Please study this class in her memory.


This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

We hope you find this class informative and stimulating! If you do not see a subscription form to the left of the screen, access the Advanced Learning Network to subscribe to Business-Halacha.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!

 






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