DAF TOPICS by Yakov Schonberg, from OHR HAMERCAZ, the Mercaz Daf Yomi weekly newsletter.

“OWNER WITH HIM” EXEMPTIONS

The Torah provides sweeping exemptions for a borrower, if the owner of the loaned item participates with a service to the borrower at the time of the loan. A series of pesukim delineate the rules applicable to shomrim and the pasuk relating to shoel, the borrower, includes the intriguing exemption of בעליו עמו, owner participation.

EXPLOITING THIS EXCEPTION

Rava teaches on Daf 97a how this exception can be applied for one’s benefit to avoid liability when borrowing an item. He advises that one who wishes to borrow something from his friend, before taking possession of the item, should ask the owner to get him some water to drink. That would then constitute a case of שאילה בבעלים borrowing from someone in the borrower’s service. Rava adds, if the owner is clever, he should counter with the reply: “First borrow the item and then I shall give you the water.” The service must precede the lending, so that the loan is made with the owner’s participation. This is based on the case in an earlier Mishna (80b) of שמור לי ואשמור לך, watch my property for me and I will watch your property for you, where the gemora (81a) establishes the principle that where an exchange of services occur simultaneously, בעליו עמו applies.

LOGICAL REASON

Other than scriptural teachings, the gemora does not provide a logical basis for this liability exemption. Sefer Hachinuch (60) asserts that the owner’s presence while the borrower accepts responsibility for the item suggests to the borrower that the owner will be vigilant to continue looking after his object, limiting the borrower’s acceptance of responsibility. Even though the owner will not stay, the law cannot set time limits, so the exemption gets extended indefinitely. Ralbag explains that when someone is subservient to another, he does not have the mind-set to assume full responsibility as a master. Ralbag adds another thought, that when a person does a favour for another, a reciprocal favour may be expected, and subconsciously he may be content to lend without commitment for loss. Seforno explains that where they are benefiting each other, there is a friendly meeting of minds for limited liability. An interesting insight by Halacha LeMoshe (footnote to Chevas Yair 223) is based on the concept that accidents can be attributed to a person’s mazal. Where an item remains connected to the owner, as in the case of בעליו עמו, any damage may be ascribed to the owner’s mazal, as there is an incomplete transfer of control to the borrower.

EXAMPLES

A situation which can give rise to this exemption is the common practice to exchange homes for a short vacation. Although real estate is excluded from hilchos shomerim and therefore this exemption would not apply to lending property, in practice the facilities being utilised include furnishings. Besides the benefit one enjoys staying in the home, one is at the same time protecting it from being left empty. This interchange of services qualifies for liability exemption, provided one does not commence his usage before the other. There is discussion as to when the timing starts, whether it includes preparatory arrangements including travelling to the place. The same applies to a simultaneous exchange of bicycles or cars. A passenger who borrows a cell-phone from a taxi driver during a journey, may be exempt if it is lost because of בעליו עמו, but if the passenger unintentionally damages the taxi, he may be considered a mazik who cannot benefit from this exemption and is liable for damages according to most poskim. It may also be restricted to where the taxi driver owns the vehicle but not where the service is provided by a taxi company. Someone who has hitched a lift could not benefit because the driver was driving for his own purposes anyway, unless he went out of his way for the passenger (Mishpat HaChoshen).

GEMACH LOANS

Rabbi Yitzchak Zilberstein (Chashukei Chemed, Bechoros-50b) was asked regarding a sick person who had borrowed an adjustable bed from a medical equipment gemach. Unfortunately, visiting grandchildren playing with the bed managed to damage the controls, requiring expensive repairs. The organisation demanded that the borrower pay for the repair as it was his responsibility. The borrower, having studied this sugya, surprised them with the claim that he was exempt as they were holding his deposit check. As they were looking after his check, they were performing a service for him at the time he borrowed the bed, and he should be exempt even in the case of gross negligence. The organisation turned to Rabbonim for protection against such claims, as their whole inventory was at stake. Rabbi Zilberstein rejected the claim for exemption. He argued that when one takes a mashkon as a security deposit, one needs to preserve it for its return when the loan terminates and exercising that care could be regarded as a service by the owner. However, in the case of a check, the borrower does not require its return as it is useless and will be torn up anyway, especially where the check was written account payee only. The gemach is only holding the check for its own benefit so that it is covered for any damage and there is no element of service for the benefit of the borrower. However, if it was an open cheque which can be reused on return, that may be viewed as a mashkon.

AVOIDING THE PROBLEM

A gemach cannot operate unless it can protect itself against losses and that is why the security deposit is so important. My wife started a wedding dress gemach over ten years ago and I was advised by Dayan Yitzchak Solomon in drafting the Terms and Conditions. An explicit condition for liability in the loan agreement signed by the borrower overrides any בעליו עמו exemption, but in order for the condition to be enforceable, a kinyan is necessary, and the borrower lifts the pen high as a kinyan sudar. Another way of guaranteeing liability is to ensure that the borrower takes the item before the lender receives the deposit.

COMMUNAL WORKERS

Rava made a second statement on Daf 97a regarding municipal employees: any loans made during working hours are all subject to the שאילה בבעלים exemption. Ritva explains that workers paid out of communal funds are considered in the service of every community member and so long as the worker is servicing one member, it is as if he is working for the community as a whole and the borrower as well. Some twenty years ago Rabbi Dov Kahan of Bais Din Maisharim, Lakewood illustrated this halacha with a story. It is customary to decorate the baby at a pidyan haben and to bring him in on a silver platter. Gemachim lend large platters for this ceremony, but on this occasion, when arriving home after the celebration, the baal simcha realised that in all the excitement, he had forgotten the platter at the restaurant. When he returned to the restaurant to collect it, the valuable platter was nowhere to be seen. The gemach owner consulted Beis Din in connection with his claim for thousands of dollars compensation for the lost item. While he was discussing the claim procedure, the owner’s Hatzolah phone rang with an emergency call. When he returned, the Dayan asked the owner if he was on call at the time when he lent the platter. The Dayan explained that someone on call to serve the public would be included in the category of Rava’s workers who continually provide service and the borrower would be exempt from paying compensation for his negligence. This almost true story created by Rabbi Kahan for illustrative purposes went viral and many were incredulous of his pesak. Rabbi Kahan related this episode at a preparatory shiur for this year’s Aguda Yarchei Kalloh and confirmed that he consulted with Rabbi Eliashev and Rabbi Karelitz at the time for their view and they concurred with his pesak.

ON CALL

Anyone on call, even if he is not providing a service at the time, falls within Rava’s category of public servants. This includes objects loaned by someone in his employ, such as services provided by his lawyer, cleaner, babysitter, barber, or builder during the hours they are working for him at the time of the commencement of the loan. A garbage collector may not be servicing my home, or a teacher might not be interacting with my child right now, as in Rava’s case, but as long as he is on duty and committed to serve generally, he is regarded as serving the public and any loans from him to another member of the public would be subject to liability exemption of בעליו עמו. If the Hatzolah member would have taken the precaution to stipulate liability as a condition together with a kinyan sudar, liability would have been enforceable, and it is advisable for any such gemach to be doing that. Some argue that taking a deposit check indicates an implied condition, but a kinyan would still be needed to enforce the Torah exemption.