The Borrower's Liabilities

'Perhaps the most difficult of all the laws of Jewish Civil Law to comprehend' — wrote Rabbi S. R. Hirsch — is the law of the borrower. I borrowed a pencil from my neighbor; it rolled off the table and broke in half — do I need to pay for a new one?

"If a person borrows something from another, and it becomes broken or dies ... then the (borrower) must make full restitution. However, if the owner was involved with him, then he need not make restitution." (Ex. 22:13-14)

A borrower is accountable for all damage or loss, even for completely unpreventable accidents. Even if the borrowed pencil was swept away in a tornado, I am still obligated to buy a new one for my neighbor. This comprehensive liability seems to be unreasonable. Even if I had not borrowed the pencil, it would still have been lost when the tornado struck. Why should I have to pay? As the Talmud (Baba Metzia 36b) asks, "What difference does it make to the Angel of Death where it is located?" 

Encouraging Chesed

Rav Kook explained that the Torah placed extra liabilities upon the borrower — even in cases when the article would have been lost even if not borrowed — in order to encourage people to be helpful and lend to one another. This is similar to the rationale for rabbinical legislation protecting those who lend out money, "So that the door will not be locked against borrowers" (Sanhedrin 32a). Since the lender receives nothing in return for his kindness, the Torah wanted to counterbalance any selfish thoughts that might prevent him from helping his neighbor.

Strange Exception

This explanation helps us to understand the most peculiar aspect of the law of the borrower — his exemption from liability when "the owner was involved with him" ("be'alav imo"). The Torah states that if the owner was working for the borrower at the time of the loan (whether for pay or just as a favor), then the borrower is no longer responsible for damages. We might have thought that the Torah is referring to a situation where the owner and borrower were working together with the borrowed object. But the Talmud teaches in Baba Metzia 95b that it makes no difference what service the owner was performing for the borrower. Thus, if my neighbor was helping me with my computer when I asked to borrow his pencil — I am no longer liable for its damage or loss.

Even more surprising, the Sages taught that this exemption takes effect if the owner assisted the borrower at the time of the loan. What the owner was doing when the article broke, however, is irrelevant (Baba Metzia 94a-b).

Why should it matter if the owner was working for the borrower? Perhaps I could understand if the owner was present when the object was damaged — he could see for himself that it was used properly. But why should it make a difference if he was present at the time of the loan? This exemption is so illogical that one highly-respected authority (Chavat Yair, sect. 223) despairingly commented, "This is an unsolved problem that I have taxed my brain to make sense of and find a reason for – in vain." 

No Need for Extra Measures

The explanation above, however, helps us solve this riddle. The Torah placed comprehensive liability upon the borrower in order to encourage kindness and generosity. In the situation of "be'alav imo," however, we see that the owner assists the borrower more than is common between neighbors. His service for the borrower indicates that there exists a special friendship between the two. In such a case, it is unlikely that the owner will refuse to lend out his possessions. Therefore, there is no need for the Torah to place extra liabilities upon the borrower to encourage the loan.

For this reason, the verse concludes with the law of a rented article: "If the article was hired, (the loss) is covered by the rental price" (Ex. 22:14). The text indicates that the borrower — when the owner is in his service – is similar to one who rents an object. What is common to these two cases? In both of them, the lender is the recipient of some benefit from the one borrowing. Therefore, the borrower is not liable for accidental loss or breakage.

Finally, this reasoning explains the Talmud's question (Baba Metzia 96a) whether one who borrowed an animal for illicit purposes is also liable if the animal dies. Why should the purpose of borrowing be a factor in the extent of the liability?

According to the reasoning above, this question becomes clear. If the borrower’s motives are improper, the Torah would not wish to promote such a loan. It is preferable that the borrower not be made liable in all situations, thus discouraging the owner from lending out his animal.

(adapted from Oztrot HaRe'iyah vol. II, p. 519)

Copyright © 2006 by Chanan Morrison