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October 4, 2015 / 21 Tishri, 5776
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Borrowed Car


“Boruch’s vort [engagement celebration] is tonight,” Chaim said to his friend, Yoni. “How are you getting there?”

“I’m not sure,” said Yoni. “I’m looking for a ride with someone. Any chance you’re driving?”

“I wasn’t planning on it,” said Chaim. “I prefer not to take my parents’ car. Let me know if you hear of something.”

Toward evening, Yoni approached Chaim. “There are four other people trying to arrange a ride,” he said, “but no one has a car available. Any chance of borrowing your parents’ car?”

“I’ll check with them,” said Chaim.

Chaim called his father. “Five of us want to go to Boruch’s vort,” he said, “but we need a car. Could we go in your car?”

“Who will be driving?” asked Chaim’s father.

“I’ll drive there,” said Chaim, “but I expect to be tired on the way back. Someone else will probably drive.”

“Do you know the other fellows?” asked Chaim’s father. “Have you seen them drive?”

“Yes, I’ve gone places with them,” Chaim answered. “All four are responsible drivers.”

“I guess you can have the car,” said his father. “Please drive carefully, though.”

Chaim called Yoni back. “My father gave the OK,” he said. “Meet me at 7:30 p.m.”

When they arrived at the vort, Chaim parked the car on one of the side streets. He locked the car and checked the doors to make sure they were closed.

When they returned to the car after the vort, they saw that it had been broken into. The brand new disc-player had been stolen.

“I can’t believe it!” exclaimed Chaim. “My father just had it installed. It cost him $200.”

An argument broke out among the group about whether the boys were responsible. “We locked the doors,” said Benny. “What more could we do?”

“That still doesn’t mean we’re not responsible,” said Chaim. “A borrower is liable for theft even if he was not negligent.” (C.M. 340:1)

“I don’t mean to be rude, but you chose to park here,” said Reuven. “You could have parked in the lot, or on a main street. It’s less likely it would have been stolen from there. So, if anything, you’re liable.”

“This street is also not deserted,” replied Chaim. “There was nothing wrong with parking here, and we all borrowed the car.”

“I’m not sure of that,” argued Reuven. “You borrowed the car from your father. We just came along for the ride. Anyway, you drove here so you carry responsibility.”

“But I borrowed the car on behalf of everyone,” protested Chaim. “So you should all share the damage.”

“I think Rabbi Dayan hasn’t left the vort yet,” said Yoni. “We can ask him!”

The five of them returned inside. Chaim related the whole story. “Who is liable for the disc-player?” he asked. “Me or the whole group?”

“This is a bit of a judgment call, whether you accepted personal responsibility for the car, or you were the representative of the group to borrow it on their behalf,” answered Rabbi Dayan. “This could depend on whether you said ‘Could I borrow?’ or ‘Could we borrow?’ It could also depend on whether you were going to be the sole driver, or whether the driving would be shared among the group. In the usual case – that the one who takes the car is also the sole driver – it would seem he alone is the borrower. However, in this case the group was trying to organize a ride and you were going to share the driving, so it seems you are all borrowers.”

“If we are all considered borrowers, then what?” asked Chaim.

“Two people who borrowed together are jointly responsible and mutual guarantors for each other,” answered Rabbi Dayan. “Therefore, each of you should pay an equal share in the loss. If one is unable to pay his share, the others remain liable as guarantors for that amount. They are entitled to collect reimbursement from him later, when he is able to pay.” (C.M. 77:1; Machane Ephraim, Shomrim #27)

“What if one person was negligent?” asked Chaim. “For example, if I had forgotten to lock the doors?”

“Then you would be liable for the full amount,” said Rabbi Dayan. “If you were unable to pay, the other borrowers would still remain liable as guarantors but would be entitled to reimbursement from the negligent party when you are able to pay. (See Shach 77:1; Nesivos 77:1; Pischei Choshen, Pikadon 1:16 33)

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 subscribe@businesshalacha.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 ask@businesshalacha.com.

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