Lesson # 278 (part one) •Borrowing

This is the first lesson of a new topic, namely, Borrowing of Objects (as distinguished from the borrowing of money).
The first thing to remember is that there is absolute liability on the borrower to return the borrowed object. The borrower must return the borrowed object in the condition that he borrowed it, reasonable wear and tear excepted. The borrower is always liable if the object that he borrows is lost, stolen, broken, damaged, destroyed, or is unavailable for the borrower to return to the owner in the condition in which he borrowed it. The reason for its non return is not important. This holds true whether or not the loss or damage is occasioned by his negligence, or even if he cannot return the object in the state in which he borrowed it due to force majeure. Thus, if the borrower borrows an automobile from his neighbor to drive from Jerusalem to Tel Aviv the next morning and the automobile is parked in front of the borrower's house and there is an earth- quake that destroys the entire neighbor- hood including the automobile, the borrower is liable. But if the force majeure occurred through the actions of the owner, then the borrower is not liable for loss brought about by force majeure.

As to the amount of damages that the borrower has to pay to the owner if the object is damaged, if the damage can be remedied, the borrower must have the object repaired and pay for the repair. If the object is an animal and the animal will eventually resume its former health, for example, a broken foot will mend completely, the borrower is free of liability if the injury was caused by force majeure. There is also a dissent that holds that the borrower is liable for lost use of the animal by the owner.

Assume the animal is partially weakened, caused by the borrower working the animal; the borrower has no liability if it was weakened in its normal use. If the animal is thereafter destroyed by force majeure, such as being struck by lightning, the borrower must pay the full value of the animal as it was when borrowed and before it became weakened.

The borrower becomes responsible for all of the liabilities of the borrower from the moment that he uses the borrowed object.

If the borrower had not yet used the object, there are different time when his liability commences. The borrower calls the owner and asks to borrow his automobile. The owner sends the automobile to the borrower with the owner's son or agent, or by way of the son of the borrower or the borrower's agent. The automobile is destroyed by an earthquake before it arrives at the premises of the borrower; the borrower has no liability for its loss since his responsibility does not commence until the automobile arrives at the borrower's premises. But if the borrower instructed the owner to deliver the automobile by way of the son or agent of either the borrower or the owner, the borrower becomes responsible from the moment the automobile is given to any of these people, and then if the automobile is destroyed by force majeure, the borrower is liable.

If the term for which the borrower borrowed the object has not yet terminated, the responsibility of the borrower continues until he returns the object to the owner personally. lf the owner is dead, the borrower must return the object to the heirs of the borrower. If the borrower sends the object back with an agent or a family member of either the borrower or the owner, the responsibility remains with the borrower until the object is returned to the owner. But if the owner designated and instructed the borrower with whom to return the object, the borrower is relieved of any responsibility as soon as he hands the object over to such person. If the term for which the borrower borrowed the object is over, then (1) the borrower acquires the responsibilities of a paid bailee, and (2) the borrower may not use the object.

The Exception
There is one notable exception to the absolute liability of the borrower, that is if the object is damaged or destroyed (the object "dies") while it was being used in the manner for which it was borrowed. There is also no liability if the owner was in the employ of the borrower when the object was loaned, no matter what occasioned the loss. If the borrower intentionally caused damage to the object, he is liable even if the owner was in the employ of the borrower.

This is an exemption from liability in all cases of bailees, based on a Torah verse.
The question has been raised, if the borrower is liable for loss occasioned by force majeure, then why should he be free of liability if the object "dies" when he is using it? For example, the borrowed computer while in the house of the borrower is burned in a fire caused by a utility company working in the neighborhood; the borrower is liable. But if the computer dies (without any fault of the borrower) while the borrower is using it, and it cannot be used again without extensive and expensive overhaul, the borrower is free of liability. If he is liable in the case where he did not use the computer, he should surely be liable when he used it. An answer given is that the owner is partially negligent in lending a computer that will die when it is used. He should have known the condition of the object that he loaned.

Not only is the borrower not liable if the thing which he borrowed such as an animal to plow with became emaciated while he was working with it, but this also holds true even if it dies while he is working in the manner for which he borrowed the thing, in this case an animal. The examples given in the codes include if a person borrowed a cow to plow with and it dies while he is plowing, or if he borrowed an animal to ride to a certain place and the animal dies while he is riding in that direction, or he borrowed a pail to draw water and while he was drawing water the pail fell into the well, or he borrowed an ax to chop wood and while he was chopping wood the ax broke.

If the borrower told the owner that he would take a certain path with the borrowed vehicle and it turned out that there were highwaymen along this path and they robbed the vehicle from the borrower, he is not liable, although the actual loss resulted from force majeure since he was traveling along the path for which he borrowed the vehicle. There is also a dissent that holds that the loss to robbers is not part of the work for which the vehicle was borrowed and there is liability as in all cases of loss by force majeure for which a borrower would, but for the exception, be liable.

If the borrower deviated from the accepted or contemplated use of the thing borrowed, the exception is not present and the borrower is liable. He is liable even if he performed less taxing work with the borrowed object, such as borrowing a tractor to pull a load of two tons up a hill and he pulled a load of two tons down a hill, if pulling downhill can adversely affect the operation of the tractor. In most situations the less taxing work done will exempt the borrower from liability even if it is a deviation from the work for which he borrowed the object. Even if he performed the work for which he borrowed the object, he may be liable if he overworked the object, such as driving the tractor day and night, which is not anticipated, since most people use a tractor on only one shift, day or night.

The subject matter of this lesson is more fully discussed in volume IX chapters 340 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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