Lesson # 282 (part five) • Borrowing

The borrower hires the owner (2)
We finished the last lesson by stating that there were many laws regarding the special relationship between the lender-employee and the borrower-employer. If the employer -employee relationship existed at the time that the lender loaned the object to the borrower, then the borrower would not be liable in most instances if the object became damaged or destroyed while in the possession of the borrower. (In the prior lesson we stated laws [a] through [h]; we now continue with laws [i] through [q].)

[i] If the lender told his agent to work for the borrower, the lender is not deemed a lender/employee. His agent is the employee of the borrower.

[j] A schoolteacher, doctor, scribe, lawyer, gardener, and the like who work for the community are deemed to be in the employ of all of the members of the community. If any of these workers loans an object to any member of the community, this is a case of special relationship since the worker is a lender and an employee of the borrower. If the worker is not required to put in a set amount of hours but may come at his pleasure, he is not deemed to be in the employ of the members of the community. Conversely, if the worker borrowed from a member of the community, the lender is not considered in the employ of the worker.

[k] A craftsman who is hired by Reuven to manufacture or repair an object for Reuven is deemed to be in his employ until the object is completed. Thus, if the craftsman lends an object to Reuven, this is a case of special relationship. However, if Reuven engages an independent contractor to manufacture or to repair an object, and the independent contractor lends an object to Reuven, this is a case of special relationship if the independent contractor happened to be working on the object when he loaned a different object to Reuven. lf he was not working on Reuven's object when he loaned an object to Reuven, he is not considered to be in the employ of Reuven for the purposes of special relationship.

[l] The appointed rabbi, judge, or sexton of a community who is on call at all times to officiate at events and to answer questions of ritual is considered to be an employee of every member of the community If he lends an object to any member of the community, it is a case of special relationship. However, if he is not required to be on call at all times but rather at specific times, he is In the employ of the members of the community only during those hours, and only if he lends an object during those hours to a member of the community is this a case of special relationship. Conversely, if he borrows from a member of the community, such member is not deemed to be in his employ and the laws of special relationship do not apply.

[m] The cantor of the community is deemed to work for all of the members of the community during the time that he is engaged in performing his duties at the synagogue.

[n] A housekeeper, maid, servant, butler, and the like are deemed to be in the employ of their employer at all times and thus if the housekeeper lends an object to the master of the house it is a case of special relationship.

[o] The lender of the object was in the employ of the borrower when he borrowed the object for 30 days and left the employ of the borrower prior to the termination of the 30-day period. As seen in item [b] (last issue), this does not affect the special relationship. At the end of the 30 days, when the lender was no longer in the employ of the borrower, the borrower continued to hold on to the object that he borrowed, thus becoming a lessee. The relationship continues as one of special relationship. (The law is the same if the object is leased to the lessee while the lessor was employed by the lessee, or if the object is given to a bailorto watch while the owner of the object is in the employ of the bailee. Even if the owner of the object is no longer in the employ of the lessee when the term of the lease or the bailment terminates, the special relationship continues if the object continues to be held by the lessee or the bailee.)

This assumes that there is no interruption of the holding of the object and the holding continues uninterrupted from the borrowing to the lease; it is true although the owner of the object was not in the employ of the borrower turned lessee when the borrowing changed into a lease. This holds true even if the intended second holding was for 30 days and then the borrower continued to hold the object for another 30 days; the special relationship is still present based on the original special relationship, since there has been no interruption in the holding of the object. This is true even if the object was loaned by the lender for the 30-day period and the borrower continues to hold the object as a lessee. However, if the change was from a lessee to that of a borrower, then there is a minority opinion that the special relationship does not continue beyond the first 30-day period since the owner was not then in the employ of the lessee turned lender. Also if the original holding of the object was that of a borrower and then as a lessee and the third holding is also that of a lessee, then the third holding cannot be attached to the first holding, so that the third holding does not have the status of special relationship.

The first borrowing for 30 days was made without the lender being in the employ of the borrower. When the 30 days were terminated, the lender was hired by the borrower or was already in the employ of the borrower; the second borrowing qualifies as a special relationship although there was no interruption of the holding of the object by the borrower.

[p] All of the laws dealing with special relationship apply if the borrower does not use the borrowed object other than in the manner for which it was borrowed. If used in another manner, the special relationship does not exist and the borrower is liable as if he willfully destroyed the object, for which he is always liable.

[q] A robber or thief lends a stolen object to a borrower and is in the employ of the borrower; the special relationship does not exist between borrower and the real owner since the object does not belong to the lender.

In the marriage relationship, ordinarily a husband has the use, but not the owner- ship, of assets, both real estate and personal property, belonging to his wife. The husband who has the use of the wife's assets during their marriage is considered to be in a special relationship regarding these assets. But if she borrows from him, it is not deemed to be a special relationship.

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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