“Hi, Levi,” said his friend Moshe. “I’ve got a project to work on for the next two months. By any chance, do you have a spare laptop you’re willing to lend for the duration?”
“Funny that you’re asking,” replied Levi. “I just bought a new laptop but am planning to keep the old one as a spare. If you want to borrow it for two months, that’s fine.”
“Great!” exclaimed Moshe appreciatively. “When can I come by for it?’
“I’m not home today,” said Levi, “but any time tomorrow would be fine.”
The following day, Moshe came by and picked up the laptop.
A week later, while Moshe was working in the library, Baruch came by to visit. “I see you got yourself a laptop,” Baruch said. “When did you buy it?”
“Actually it belongs to Levi, a friend of mine,” said Moshe. “I borrowed it for two months to work on the project.”
While they were talking, Baruch accidentally knocked the laptop off the table. It fell to the floor and cracked.
Moshe picked up the laptop and examined it. “It’s ruined,” he said to Baruch. “The laptop is smashed and cannot be repaired. You’ll have to pay me for the laptop.”
“It wasn’t your laptop,” said Baruch. “I don’t owe you anything. When Levi asks for his money, I’ll pay him. For all I know, he’s not going to ask you to pay, anyway.”
Moshe called Levi. “A friend of mine, Baruch, broke the laptop you loaned me,” he said.
“Although I bought a new laptop, I still want the old one,” said Levi. “You’ll have to pay for it.”
“Baruch ruined the laptop, though,” Moshe said to him. “Ask him for the money.”
“I don’t know Baruch; I have nothing to do with him,” replied Levi emphatically. “You borrowed the laptop, you are liable for it. Either pay or get the money from Baruch and give it to me.”
Levi contacted Baruch, “Levi said that I should get the money from you,” he said.
“You’re responsible for the laptop,” said Baruch. “After you pay Levi, I’ll pay you, not beforehand!”
Frustrated, Moshe went back to Levi. “Baruch refuses to pay me until I pay you,” he said, “but why I should pay if he damaged the laptop? I don’t have the money to lay out.”
“It’s not fair that you push me from one to the other,” said Levi. “My head is spinning! Let’s take it up with Rabbi Dayan.”
Levi and Moshe went to Rabbi Dayan. “Who is liable for the laptop?” asked Levi. “Moshe, who borrowed the laptop, or Baruch, who damaged it?”
“The Gemara (B.K. 111b) addresses a similar case,” replied Rabbi Dayan. “If someone steals an item and then another person comes along and consumes it, both are accountable to the owner. The thief is liable because he stole the item. Nonetheless, the item still belongs to its owner, so that the one who consumed it damaged his property. Therefore, the owner can collect from either party, or even partial payment from one and partial payment from the other. The same is true in your case.” (C.M. 361:5)
“But I didn’t steal anything here,” objected Moshe. “I didn’t do anything wrong.”
“True, but a borrower is accountable to the owner for his item, even if lost through uncontrollable circumstances (oness),” replied Rabbi Dayan. (C.M. 340:1) “Thus, you owe Levi. Still, since the laptop was Levi’s property, Baruch is also liable toward him, so that Levi can collect from either of you.”
“Can I demand payment of the laptop from Baruch now, or only Levi?” asked Moshe. “Does Levi owe me anything?”
“Because you are responsible to pay for the laptop, and Baruch caused you a direct loss (garmi) by breaking it, he has accountability to you also,” answered Rabbi Dayan. “On the other hand, let’s say Levi were to forgo payment, you would not be able to demand payment from Baruch, since he did not damage your laptop and did not cause you any loss.” (See Pischei Choshen, Geneivah 4:34)
“What about the fact that I don’t have use of the laptop to finish the project?” asked Moshe.
“The Nesivos (341:11) suggests a novel idea regarding this,” said Rabbi Dayan. “Since you borrowed the laptop for two months, you have a legal right to use the item for that time; Moshe could not demand it back until the two months were up. Therefore, the Nesivos maintains that the value of that usage, the laptop’s depreciation, is owed to you, the borrower – not Levi, the owner. This only applies, though, if the item’s nature and the duration of the loan are such that the usage entails an accruable depreciation of the item. (See Chukei Chaim – Hichos She’eilah 2:12; P.C., Pikadon 9:14)
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 firstname.lastname@example.org. 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 email@example.com.
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