Betzalel was a “fix-it” man who enjoyed carpentry as a hobby. He did many home improvements himself, which he found both economical and enjoyable. He was now building a swing set for his children, happily sawing, drilling, hammering, and bolting the pieces.
As he drilled into a thick piece of lumber, Betzalel hit a knot in the wood. The bit caught and stalled, and a burning smell began to waft from the motor. He unplugged the drill and let it cool. Ten minutes later, Betzalel tried to use the drill, but it remained silent, motionless. “The motor went,” he said sadly. “I’ll have to get another drill.”
Betzalel called a neighbor, Dan, who shared his crafting interest and asked: “Do you have a drill I can borrow for a couple of days?”
“Sure,” said Dan. “What happened to yours? I heard you drilling and sawing away all morning!”
“I hit a knot in the wood, and the motor burned,” Betzalel said. “I’ve had the drill a long time and it looks like I’m going to have to get a new one.”
“I’ll tell you what,” said Dan. “I’ve been planning to make a small cabinet, but don’t have a circular saw. I’ll lend you my drill if you’ll lend me your saw when you finish your project.”
“Deal!” laughed Betzalel. “When I finish the swing I’ll bring my saw together with your drill.”
Two days later, Betzalel returned Dan’s drill and brought his saw with it. Dan took the tools and put them in the shed in his yard.
During the night, there was a severe thunderstorm. A bolt of lighting hit a tree in Dan’s yard, splitting it. A heavy branch landed squarely on the tool shed, flattening it. When Dan checked in the morning, he saw that Betzalel’s saw had been crushed.
“I put the saw away securely in the shed,” Dan apologized to Betzalel. “There’s nothing I could do about the lightening and the tree.”
“When you borrow, you are fully liable, even for such circumstances,” said Betzalel. “That’s the rule of a sho’el (borrower).” (C.M. 340:1)
“But why am I a sho’el?” said Dan. “I loaned you my drill as payment for using your saw!”
“That wasn’t payment; we both borrowed,” argued Betzalel. “I borrowed your drill and you borrowed my saw. Had something happened to your drill, I would be liable; the tree fell on my saw – you’re liable. It’s that simple!”
“To you it’s simple; to me it’s not,” exclaimed Dan. “Let’s ask Rabbi Dayan: Am I liable for the saw as a sho’el?”
“A person is considered a borrower (sho’el) only when the benefit is entirely his,” answered Rabbi Dayan. “However, if the lender also has a tangible benefit from lending the item, the borrower is considered a renter (socher).”
“Since Betzalel loaned his saw in return for borrowing Dan’s drill, each benefited from granting the loan,” continued Rabbi Dayan. “Betzalel gained use of the drill and Dan gained use of the saw. Therefore, you do not have the rule of borrowers, but that of renters.” (C.M. 305:6; Pischei Choshen, Pikadon 10:4-5)
“What is the rule of a renter?” asked Dan.
“A renter is liable for negligence, and even theft or avoidable loss, but not for circumstances beyond his control (oness),” answered Rabbi Dayan. “Thus, since the saw was destroyed through oness, Dan is not liable for it as a sho’el but is exempt as a socher. Had the saw been stolen, though, he would be liable.” (C.M. 303:2-3)
“I assume it makes no difference whether the drill and saw were borrowed on separate days or simultaneously?” inquired Betzalel.
“Actually, it does,” replied Rabbi Dayan, “in cases such as theft.”
“Really?” exclaimed Betzalel. “Why should that be?”
“It’s a bit complicated,” answered Rabbi Dayan. “When you borrow an item, you are responsible for looking after it, which may be a kind of service to the owner. Thus, when two people mutually borrow, they may be doing each other a mutual service. The Rama cites two opinions whether we apply here the concept of shemira b’baalim.”
“What is that?” asked Dan.
“When the owner of the borrowed item is serving or employed by the borrower at the time of the loan, the borrower is exempt unless grossly negligent,” explained Rabbi Dayan. (C.M. 346:1-2) “Thus – according to the lenient opinion that considers borrowing from a borrower as shemira b’baalim – had Dan borrowed the saw while Betzalel still had his drill, Dan would not have to pay for theft of the saw, since Betzalel was serving him by looking after his drill. However, Betzalel could withhold the drill, in accordance with the stringent opinion that does not consider him as serving Dan, and does not view this as shemira b’baalim.”Rabbi Meir Orlian
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to email@example.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail firstname.lastname@example.org.
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