The Borrower's Liabilities
"Perhaps the most difficult of all the laws of Jewish Civil Law to comprehend" (to quote Rabbi Shimshon Rafael 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." (Exodus 22:13-4)
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 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 asks, "What difference does one place or another make to the angel of death?" (Baba Metzia 36b)
Encouraging Chesed
Rabbi Avraham Yitzchak Hacohen Kook explained that the Torah placed extra liabilities upon the borrower - even when the borrowed article would have been lost anyway - in order to encourage people to be kind and lend to one another. This is similar to the rationale for certain rabbinical legislation "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 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 (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 Talmud writes that this exemption takes effect when the owner assisted the borrower at the time of the loan. What the owner was doing when the article broke, however, is not relevant. (ibid. 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 taken care of 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) commented that it "is an unsolved problem that I have vainly taxed my brains to make sense of, and to find the reason for."
No Need for Extra Measures
The explanation above, however, helps us solve this riddle. The Torah placed extra liabilities upon the borrower in order to encourage kindness. 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 case of a rented article: "If the article was hired, (the loss) is covered by the rental price." (Exodus 22:14) The Torah is comparing the borrower - when the owner is in his service - to one who rents an object. In both cases, the lender is the recipient of some benefit from the borrower; and therefore, the borrower is not responsible for accidental loss or breakage.
Finally, this reasoning explains the Talmud's question (ibid. 96a) whether one who borrowed an animal for illicit purposes is also liable if the animal dies. In this instance, the Torah would not wish to promote the loan. In order to discourage the owner, it is preferable that the borrower not be made liable in all situations.
[Adapted from Oztrot Hariya vol. II, p. 519]
"Perhaps the most difficult of all the laws of Jewish Civil Law to comprehend" (to quote Rabbi Shimshon Rafael 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." (Exodus 22:13-4)
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 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 asks, "What difference does one place or another make to the angel of death?" (Baba Metzia 36b)
Encouraging Chesed
Rabbi Avraham Yitzchak Hacohen Kook explained that the Torah placed extra liabilities upon the borrower - even when the borrowed article would have been lost anyway - in order to encourage people to be kind and lend to one another. This is similar to the rationale for certain rabbinical legislation "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 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 (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 Talmud writes that this exemption takes effect when the owner assisted the borrower at the time of the loan. What the owner was doing when the article broke, however, is not relevant. (ibid. 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 taken care of 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) commented that it "is an unsolved problem that I have vainly taxed my brains to make sense of, and to find the reason for."
No Need for Extra Measures
The explanation above, however, helps us solve this riddle. The Torah placed extra liabilities upon the borrower in order to encourage kindness. 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 case of a rented article: "If the article was hired, (the loss) is covered by the rental price." (Exodus 22:14) The Torah is comparing the borrower - when the owner is in his service - to one who rents an object. In both cases, the lender is the recipient of some benefit from the borrower; and therefore, the borrower is not responsible for accidental loss or breakage.
Finally, this reasoning explains the Talmud's question (ibid. 96a) whether one who borrowed an animal for illicit purposes is also liable if the animal dies. In this instance, the Torah would not wish to promote the loan. In order to discourage the owner, it is preferable that the borrower not be made liable in all situations.
[Adapted from Oztrot Hariya vol. II, p. 519]