Lesson # 279 (part two) •Borrowing

What has been said in the prior lesson assumes that the parties have agreed upon a specific term for the borrowing of the object. Assume, however, a not uncommon situation where there is no specified time for the borrowing. The owner loans an object to the borrower and there is nothing said about the length of time that the borrrower may use the object. The owner may make demand at any time for the borrower to return the object to the owner. But until the owner makes demand for its return, the borrower may use the object without time limit. The borrower, during all this time, is responsible for the object and is responsible even if the object is lost through force majeure.

If the object is borrowed for a specific purpose, such as a tool to make a repair or a vehicle to drive to a certain destination, the owner may not request the return of the object until the purpose has been fulfilled.

If the lender dies and the heirs are not aware of the loan of the object, the borrower must return the object to the heirs before the end of 30 days unless the heirs of the borrower stipulate otherwise.
The borrower borrows a house for a specific purpose:
[1] to lodge there for the night - the borrower has the use thereof for not less than a full day;
[2] for a week-end - the borrower has the use thereof for not less than two days;
[3] for a wedding - the borrower has the use thereof for not less than 30 days;
[4] The borrower borrows a garment to wear to pay respects to the house of a mourner. He may retain the garment for the time it takes him to get to the house of the mourner and back. There is another opinion that holds that the borrower may retain the garment for the complete seven days of mourning;
[5] The borrower borrows a garment to wear to a wedding. There is an opinion that he may retain it for the day of the wedding, and there is another opinion that he may retain it for the seven days of the wedding celebrations and some say thirty days.

Object Loaned for a Specified Term
If the owner and the borrower agreed as to a specific term for the loan of the object, once the borrower has acquired possession of the object, the owner cannot demand the return of the object prior to the end of such term.

Lending an Object for a Specific Purpose
If the borrower asked for the use of a hoe with which to hoe his garden, he may hoe his garden only and no other garden. If the borrower asked for the use of a hoe to hoe a garden, he may hoe any garden. If the borrower asked for a hoe to hoe gardens, he may hoe all of the gardens that he has but not gardens belonging to others, even if the metal of the hoe disintegrates while he is hoeing. If it does, the borrower must return the wooden handle.

What was stated in the prior paragraphs is indicative of similar situations.

If the borrower asked to borrow a grooved stone to be used to carry off the overflow of a well, and the grooved stone was damaged, he may not rebuild it. If the borrower asked to borrow a grooved stone without specifying a purpose, and the grooved stone was damaged, he may rebuild it. If the borrower asked for a place for a grooved stone, used to carry off the overflow water from a well, and if a kinyan was performed, he may continue building on the owner's land until there is found a place for the stone to keep his animals watered or his land irrigated.

Lending Out of the Owner's Kindness
The borrower asks the owner to lend him an object with the phrase, "Lend this object to me out of your kindness." The Rabbis have ruled that such a borrowing, if accompanied by the performance of a kinyan, does not follow the rules of the term of the borrowing since the intent is not to apply the rules of other borrowers to this transaction. But, rather, the owner, by the kindness of his heart, will permit the borrower to keep possession of the object as long as he wants, and the borrower need not return it at any time, and the owner cannot demand its return even at the time that the borrower is not using the object.

Once the object becomes unusable, the borrower must return the broken parts to the owner. The borrower cannot have the object repaired.

If the object is destroyed by force majeure, the borrower need pay only for the value of broken parts.
In the event that the borrower does return the object to the owner, he may again take the object from the owner whenever the borrower so desires. If no kinyan was performed, then the borrower does not have this right.
The borrower does not have the right to loan the object to anyone else.

The Borrower Dies; Responsibility of the Heirs
If the borrower dies, his heirs may use the object to the end of the agreed-upon term. However, the heirs are not responsible for the object if it is damaged or destroyed by force majeure. The responsibility of the heirs is like that of a paid bailee and they are thus responsible if the object is lost, damaged, or destroyed for any reason except for force majeure, whether or not the heirs use the object. The owner may insist that they accept the responsibility of a borrower and be liable for loss through force majeure or return the object to him. If the owner does not so stipulate, and the heirs do not want the responsibility of a paid bailee, they may return the object to the owner at any time.

The father dies and the heirs find among the assets of the father a borrowed cow. The heirs, not being aware that the cow was borrowed, proceed to slaughter the cow and eat of its meat. If the father left an estate at least equal in value to the value of the slaughtered cow, the heirs must pay to the owner for the value of the slaughtered cow. If he father did not leave an estate to cover the cost of the slaughtered cow, then Beth Din will appraise the value of the slaughtered cow, and the heirs will pay for the value of the meat at a one-third discount from the established market price. The hide of the animal belongs to the owner.

The Borrower May Not Lend Out the Borrowed Object
The borrower may not lend out the object that he borrowed even during the term for which he borrowed the object. Even if the borrowed object is a Torah scroll, he may not lend it out.

If the borrower loaned the object to a second borrower and if anything happened to the object while in the possession of the second borrower, the first borrower is liable. There is an exception if it can be proved that the object "died" while the second borrower was using it for the same type of work that the first borrower would have done, and the object would then have "died" in the possession of the first borrower.

There is an opinion that the first borrower may lend the object to a second borrower if the object is something that the second borrower cannot carry away; such as a house or a boat. The majority view does not make this exception.

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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