Hilchos Choshen Mishpat
Volume I : Number 34
Liability Of A Sho'el (Borrower)
Reuven borrowed a bicycle from Shimon for the day. As he was driving at
high speed down a road, a child jumped into the path of the bike. Reuven
swerved to avoid the child and collided with a tree. Although Reuven was
unhurt, the frame of the bicycle was bent and permanently damaged.
Is Reuven obligated to pay Shimon for the bicycle?
- The Torah obligates a borrower to repay the owner of a borrowed object
even if it was stolen or damaged through no fault of his own (Onais).
However, if the item was damaged in the course of normal usage (Maisah
Machmas Melacha), he is exempt.
- There is disagreement among the Rishonim whether our case can be
classified as damage in the course of normal usage, or must be considered
a regular case of inadvertent damage for which a borrower is liable.
Therefore, a Bais Din could not obligate Reuven to pay Shimon for the
bicycle, and Reuven has no obligation even in the Heavenly Courts
(B'Dinei Shamayim), since the Halacha in this case is in doubt. However,
if Shimon would owe Reuven money, he may retain the equivalent of the
value of the bike for himself.
The Ramban (Bava Metziah 96b D'H Hah D'Amrinun) explains that the reason
why a borrower is not responsible to pay for damage incurred during the
course of normal usage is because the lender shares a degree of
responsibility for lending something that is actually not fit for use.
Although he may not have known this at the time of the loan, he has still
caused his own loss by giving the borrower permission to use something
that is not fit for normal usage. This opinion is quoted by the Rema in
Choshen Mishpat 340:3.
According to this opinion, a borrower would only be exempt if the damage
during normal usage had come from the wear and tear of the borrowed item
itself. If there was an external factor that caused the damage during
normal usage, the borrower would be obligated to pay, just as he would
have to pay for any inadvertent damage.
However, the Ramah states that even if the damage was caused by an
external factor, as long as it occurred during the time of usage that it
was borrowed for, the borrower is exempt. Only if the damage would occur
when he is not using the item for the purpose that he borrowed it for
would he be liable for an Onais. This opinion is stated in the Shulchan
Oruch (Choshen Mishpat 340:3) as the Halacha. The rationale behind this
is that the reason behind the exemption of Maisah Machmas Melacha is
because the owner specifically gave it to the borrower to use under
normal conditions, not to store in his home. He understands that there
are risks involved in allowing his item to be used by others. The
understanding is, therefore, that the borrower will not be liable for any
damage that occurs under normal usage.
The Ramah extrapolates from this that if a person were to borrow a horse
to ride to a certain place, and was attacked by armed robbers or wild
animals during the trip, and the horse died, the borrower is exempt.
Since at the time of the death of the horse the borrower was using it for
what it had been borrowed, this is considered damage during the course of
normal usage, despite the fact that there was an external factor
In light of this, in the case of our question, according to the opinion
of the Ramban, Reuven would be required to pay Shimon for the bicycle
since the damage was the result of an external factor, although it
occurred during the time of normal usage. According to the Ramah, Reuven
has no obligation to pay for the bicycle at all, since it was damaged
during the course of normal usage. To quote the Bais Yosef in explaining
the opinion of the Ramah, "The lender knew that the roads are fraught
with danger, and lent it to the borrower with this understanding!"
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grandmother Gittel Bas Yitzchok Dovid Haleyvei a"h, whose yahrtzeit is
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!