Lesson # 280 (part three) • Borrowing

The Borrower fails to return the object
Assume that the borrower is not able to return the object that he borrowed. The liabilities of the borrower are stricter than that of the lessee.

The animal is struck by lightning, force majeure, and dies. If the animal died while Shimon was a lessee, he is not liable for not returning the animal alive to Reuven; if he is a borrower, he is liable.

Stipulations regarding liability
Although the borrower has specific liabilities, the parties may stipulate among themselves to vary the terms of the usual liabilities, if the variation does not violate a Torah command. Thus, borrower and lender may agree that the borrower will not be liable in any event even if he is negligent with the borrowed object. All such stipulations will be binding upon the parties, whether or not there were witnesses present when the stipulations were made. Assume that the object that the borrower borrowed cannot be returned to the owner because it was damaged or destroyed. The borrower pleads that it was so damaged or destroyed while he was using the object for the purpose for which it was borrowed without deviating from the manner of such use, and therefore there is no liability on his part. The borrower has two alternatives. If there were witnesses present when the object was so lost, damaged, or destroyed, he must produce the witnesses, who will testify that the object was damaged or destroyed while the borrower was using the object for the purpose for which it was borrowed and without deviating from the manner in which it could be used. Failure to produce the witnesses will result in the borrower becoming liable to pay for the damage or the destruction of the object.

If there were no witnesses present when the loss occurred, and the borrower wishes to be relieved of liability for the loss or damage while he was using the object in the manner for which he borrowed it, he takes an oath and is free of liability. He must return to the owner any parts of the borrowed object still in his possession.

The Borrower Must Pay for the Object
The object was lost, damaged, or destroyed while the borrower was not using it for its intended use. He is liable for the object. If the object is one that is of the type readily available and may be purchased easily by the borrower, and is uniform in quality, the borrower pays and is free of any oaths. If one of these two criteria is lacking, the borrower takes an oath that the object is not in his possession. The oath includes a statement as to how the object was lost. Then the borrower makes the payment to the owner as provided for below.

Valuing and Paying for the Lost Object
Assume that the object is damaged while in the custody of the borrower. It was worth $100 when the damage occurred. It is now worth $30. The borrower makes payment for the value of the object at the time when the loss occurs, in this case the time when he was either negligent, or the object was lost or stolen, damaged, or destroyed through force majeure, which resulted in the loss of the object. The borrower must return the object and add $70. The borrower is not liable for an amount of money greater than that which he was told the object is worth. If the owner understates the value of the object or the type of object it is, the liability of the borrower is limited to that value. The difference in value between the time of the loss and the time that the lawsuit is heard and decided by the Beth Din is borne by the owner. Conversely, if the value of the remains of the object goes up, such gain accrues to the owner.

If the owner knows the value of the object, he takes an oath as to how much it was worth when the loss occurred, and the borrower pays such sum. If the owner does not know, and the borrower pleads that he knows and admits that he owes such sum, and the owner has no evidence to counter the plea of the borrower, the borrower pays such amount and is relieved of liability. Assume that neither the borrower nor the owner knows the value of the object when the damage or destruction to it occurred. What valuation should it receive? Beth Din will have to determine the value at the time that it was borrowed by the borrower and what use was made of the object until the loss occurred, as well as determining any other issues by any method that Beth Din can devise to ascertain the amount to be paid.

Both a Borrower and a Lessee
Assume that Shimon borrowed the object for half a day and leased it for the other half of the day; or he borrowed it for Sunday and hired it for Monday; or he borrowed one object such as an animal and leased another animal. In all of these situations assume that the animal is dead (force majeure), not having died while being used in furtherance of the borrowing. Although there are three situations listed above, we shall discuss the case of the two animals, but the results are the same for this situation with one animal borrowed part of the time and leased for part of the time. If it died while Shimon was a borrower, he is liable for force majeure losses; if it died while he was a lessee, then there is no liability on his part, since a lessee is not liable for loss that comes about from force majeure.

The owner pleads that the animal that died is the one that Shimon borrowed. If the owner can produce proof to Beth Din that what he pleads is true, then he will win the case. Absent such proof, the following laws apply:
The owner pleads that he thinks that the animal that died is the one Shimon borrowed and Shimon either pleads with certainty that the dead animal is the one he leased or he does not know which animal died. Shimon must take an oath that the dead animal is the one he leased or he too does not know when which animal died. Shimon will win the case if he takes such an oath.

Shimon borrowed two animals for the first half of the day and leased them for the other half of the day and now both animals are dead. The owner pleads that they both died during the first half of the day when they were borrowed, and Shimon pleads one of them died during the first half of the day when it was borrowed and he does not know when the other animal died. Since Shimon cannot take an oath for both of them, he must pay for both animals.

Assume that the owner delivered three animals to Shimon - two that Shimon borrowed and the third that he leased - and two died. The owner pleads that the two that died were the borrowed animals and Shimon pleads that one of the dead ones was a borrowed animal and he does not know about the other animal. Shimon must pay for two animals.

The subject matter of this lesson is more fully discussed in volume IX chapters 344 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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