Lesson # 281 (part four) • Borrowing

The borrower hires the owner
There are times when the borrower of an object is not liable if the object is damaged or destroyed while in the borrower’s possession. This lesson explores this situation.

The Parties to the Transaction
There are two persons involved in the transactions discussed in this lesson, and each person has two roles: (a). Reuven is (1) the lender of the object that is borrowed and (2) in the employ of the borrower. He is thus a lender/employee. (b) Shimon is (1) the borrower of the object and (2) the employer of the lender of the object. He is thus a borrower/employer. For example, Reuven owns an object that Shimon wants to borrow. Reuven also works for Shimon. Thus, Reuven is a lender/employee and Shimon is a borrower/employer. The lesson discusses the special relationship between Shimon the borrower/employer and Reuven the lender/employee.

The Torah Exemption for the Borrower Who Is Also the Employer of the Lender
The rule of law as it is stated in the Torah is as follows: "lf a man shall borrow from his fellow and it shall become broken or shall die - provided its owner is not with him - he shall surely make restitution" (Sh'mot 22:13). This teaches that the borrower is exempt from any type of liability (except willful destruction of the object that he borrowed) for failure to return the object or for returning it damaged, if the borrower employed the lender at the time that he borrowed the object from the lender. I have designated the relationship between such a lender and the borrower as the "special relationship". The main question raised in this lesson is, When Reuven loaned the object to Shimon, was Reuven then in the employ of Shimon? If yes, the special relationship between borrower and lender is in effect; if not, it is not in effect.

Miscellaneous Laws Regarding the Special Relationship
There are many laws regarding the special relationship. I have set them out in the order that they appear in the major codes:
[a] The special relationship exists only if the lender is in the employ of the borrower when the borrowing takes place. Whether he is in his employ at any other time is irrelevant. For example, the borrower borrows the object at 2:00pm. The lender is in the employ of the borrower at 2:00pm; the special relationship exists. The lender is in the employ of the borrower for some time and leaves the employ of the borrower at 1:59pm; the special relationship does not exist. The lender is in the employ of the borrower from 2:00pm until 2:01pm; the special relationship exists.

[b] The lender need not be in the employ of the borrower when the loss occurs. For example, the lender is in the employ of the borrower for some time and is still in his employ at 2:00pm when the borrower borrows the object from the lender. The lender leaves the employ of the borrower at 5:00pm. The loss occurred at 7:00pm; the special relationship exists.

[c] The hiring of the lender need not be related to the object borrowed.

[d] Whether or not the lender receives compensation for working for the borrower is irrelevant.

[e] Sometimes a question arises as to when the employer-employee relationship commences, since the existence of the special relationship may hinge on the answer to this question. There are three views as to whether merely agreeing to work is sufficient or the work must have already commenced: (1) The mere oral agreement between the lender and the borrower that the borrower engages the lender is sufficient to form the special relationship, if the lender has work ready for the lender. (2) The mere oral agreement is sufficient to form the special relationship, provided that the lender arrives for work, although he has not yet commenced the work. (3) The special relationship exists only if the lender has actually commenced to work for the borrower.

[f] There are times that the lender may be working for the borrower without the knowledge and consent of the borrower; the special relationship exists in such cases. For example, the borrower borrows the lender's truck to transport lumber. The lender arrives with his truck at the premises of the borrower and the lender helps the borrower load the truck in such a manner that the load is not excessive and will not slide around the truck and break something. The borrower does not realize that the lender is performing these functions. This is a situation of the lender being employed by the borrower, although the lender is not paid anything for this help.

[g] Reuven says to Shimon you lend me your automobile and I will lend you my computer and they exchange these objects simultaneously. The better view seems to be that each is in the employ of the other and the special relationship does exist.

[h] Regarding partners, each is considered in the employ of each other. Reuven and Shimon are partners. Reuven lends his automobile to Shimon; Reuven is considered a lender in the employ of the borrower, and the special relationship does apply. The loaned object need not have anything to do with their business. There are two other cases regarding partnerships that appear in the codes.

(1) Reuven and Shimon are partners and the business loans to Levi an automobile belonging to the business. Reuven, at the time the loan is made, goes to work for Levi. Is Reuven considered the lender or, since he is only part of the lender, he is not considered the lender for the purpose of the special relationship? The automobile is destroyed by force majeure, such as by an earthquake. The law is undecided.

(2) Reuven and Shimon are partners and the partnership borrows an automobile from Levi and Levi simultaneously goes to work for Reuven outside of the partnership. Is Reuven considered an .employer or, since Levi works only for him, he is not considered an employer for the purpose of the special relationship? The automobile is destroyed by force majeure, such as by an earthquake. The law is undecided. In case (1), Levi pays to Shimon but not to Reuven, since Reuven is covered by the special relationship, and Shimon is not. In case (2), Shimon pays his half of the damages to Levi; Reuven does not pay to Levi since Levi the lender works for Reuven. <more to come>

The subject matter of this lesson is more fully discussed in volume IX chapters 346 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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