Rav Kook Torah

Mishpatim: Legislating Kindness

The Borrower’s Liabilities

Rabbi S. R. Hirsch wrote that the laws governing a borrower are ‘perhaps the most difficult of all the rules of Jewish civil law to comprehend.'1 I borrowed a pencil from my friend, but it rolled off the table and broke in half. Do I need to pay for a new one?

“If a person borrows something and it breaks or dies... the [borrower] must make full restitution. However, if the owner was with him, he need not make restitution.” (Ex. 22:13-14)

A borrower is accountable for all types of damage or loss — even for completely unpreventable accidents. Even if the pencil I borrowed was swept away in a tornado, I am still obligated to buy a new one for my friend.

This comprehensive liability appear s to be unreasonable. 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 in Baba Metzia 36b puts it: “What difference does it make to the Angel of Death where it is located?

Encouraging Chessed

Rav Kook explained that the Torah placed extra liabilities upon the borrower, even in cases when the article would have been lost even if it had not been borrowed, in order to encourage people to be helpful and lend to one another. This is similar to the rationale for special rabbinical legislation protecting those who lend money, so that ‘the door will not be closed for [would-be] borrowers’ (Sanhedrin 32a). Since the lender receives nothing in return for his kindness, the Torah sought to counterbalance any selfish thoughts that might prevent him from assisting his neighbor.

Strange Exemption

This overall understanding helps explain the most peculiar aspect of the law of the borrower — his exemption from liability when “be'alav imo” — when “the owner was with him.” The Torah rules that if the owner was working for the borrower at the time of the loan (whether for pay or just as a favor), the borrower is no longer responsible for damages.

One might think that the Torah is referring to a situation where the owner and borrower were working together with the borrowed object, such as driving a tractor to plow a field together. But the Sages explained 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 the pencil’s 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? We could understand that if the owner was pres ent when the object was damaged; the borrower could exempt himself from liability by claiming that the owner was able to check that the borrowed object was used properly. But why should it make a difference if the owner was present at the time of the loan? This exemption is so illogical that one highly-respected authority2 wrote in despair: ‘This is an unsolved problem which I have taxed my brain to make sense of and find a reason for — but in vain.’

No Need for Extra Measures

The explanation presented above, however, provides a solution to this riddle. The reason why the Torah placed comprehensive liability upon the borrower was in order to encourage kindness and generosity. In the case of “be'alav imo,” however, we see that the owner assists the borrower to a greater degree than is common between neighbors. The lender’s service for the borrower indicates that they are on friendly terms. In such a case, it is unlikely that the owner will refuse to lend out his possessions. Therefore, the Torah did not see a need to place extra liabilities upon the borrower in order 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 payment” (Ex. 22:14). The juxtaposition of these two cases indicates that the borrower — when the owner is working with him — is similar to a person renting an object. What is common to these two cases? In both situations, the lender was the recipient of some benefit from the borrower. Therefore, the borrower is not liable for accidental loss or breakage.

Borrowing a Horse to Rob a Bank

Finally, this reasoning helps clarify the Talmud’s question in Baba Metzia 96a. The Sages debated whether one who borrowed an animal for illicit purposes — say, to rob a bank — 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 encourage such a loan. It is preferable that the borrower not be made liable in all situations, thus discouraging the owner from lending out his property for improper or illegal purposes.

(Sapphire from the Land of Israel. Adapted from Otzarot HaRe’iyah vol. II, p. 519)

1 From Rabbi Hirsch’s commentary to Exodus 22:13.

2 Rabbi Yair Bachrach (1639-1702), prominent German rabbi and legal scholar, author of the collection of responsa entitled Chavat Yair.

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