More on Borrowing - Metah Machmat Melacha

Bava Metzia | Yisrael Bankier | 17 years ago

We have learnt that a sho’el, a borrower, has a higher level of responsibility than all other shomrim (guardians). The sho’el is responsible for compensating the owner if the object is lost, stolen or destroyed in nearly all circumstances; even if it was an unavoidable accident beyond his control (onsin). The previous article discussed one exception, where if the lender was employed by the borrower at the time the article was borrowed, then the borrower is not responsible for any damage it endures. There is however one other exception. Even though normally the borrower is responsible if the object is destroyed no matter the cause, if it is destroyed during normal use by the borrower, he is not liable (Bava Metzia 96b). We shall analyse why.

The Ramban (s.v. ha de’amrinan) explains that indeed a sho’el is liable for all onsin. The exemption here however is due to the negligence on the part of the lender for providing an object that cannot withstand its desired use.

The Rashba also explains the exemption comes from the lender. He however explains that it is not negligence but rather that the lender forgoes such damage. He explains that when someone lends another an object, he excepts that the object will be subject to wear-and-tear under its normal use. If, for example, the lent animal dies under normal use, it is part of this wear-and-tear the lender accepted.

When the Rambam (She’eilah U’Pikadon 1:1) however mentions this exemption he makes no reference to the need for an exemption on the part of the lender. HaRav Lichtenstein explains that the Rambam understands that the reason why the sho’el is not liable is because that situation falls outside the boundaries of a sho’el’s responsibility. (According to this understanding, the exemption is comparable to the exemption enjoyed by a paid-guardian in the case where the animal dies naturally.)

HaRav Lichtenstein explains that these different approaches are indicative of the different understandings of the overall responsibility of a sho’el.

The Rashba (Bava Metzia 36:) explains that the high level of responsibility is because since in this arrangement the borrower is the only one enjoying any benefit, the Torah made it as if it is his. In other words it is as if he has a full acquisition of the object and therefore bears full responsibility. According to this view, we can appreciate the opinions of the Ramban and Rashba; there is a need for an explicit exemption on account of the lender to explain why the lender is exempt if it is destroyed under normal use.

HaRav Lichtenstein explains that there is another way to understand the sho’el. In cases of onsin, the shomer cannot be considered negligent in his duty as a guardian. There is certainly no guilt on the shomer’s part. Nonetheless a sho’el is liable. He explains that such concepts are found in the world of insurance policies. When an insurance company pays a claim, it is not because it was responsible for the loss, but rather because of the contract agreed to at the signing of the policy. Similarly a sho’el, when he borrows an item, the Torah places on him responsibilities beyond the expectation of a normal guardian. According to this view we can appreciate the opinion of the Rambam above. There is no need for an explicit exemption. Instead the exemption of destruction under normal use is simply because it is outside the scope of the “policy” which the Torah set out.

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