Kalman approached his neighbor Dov. “My parents are coming to visit from overseas on Monday and are leaving the following Sunday morning,” he said. “We don’t have enough room in our car for the whole family. Could we rent your minivan for the week?”
“We usually don’t rent our minivan,” said Dov, “but let me consider.”
A short while later Dov reported back to Kalman. “I spoke with my wife and it’s OK,” he said. “We’re asking $300.”
“That’s fine; we really appreciate it,” said Kalman. “Also, do you have a roof luggage bag we could borrow during that time?”
“Yes,” said Dov. “I’ll leave it with the car.”
Early Monday morning, Kalman got the keys for the minivan and paid Dov $300. Throughout the week the family visited sites in the neighboring cities.
On Friday afternoon, Dov called Kalman. “Please make sure to return the keys for the car on Motzaei Shabbos,” he said. “We have a bris on Sunday morning and we’re all going. We also need the roof luggage bag.”
“But we rented the car for a week,” said Kalman. “I was planning on driving my parents to the airport on Sunday with your minivan.”
“We never agreed to rent the car for Sunday,” said Dov. “You just asked to rent it for this week.”
“That’s not true,” said Kalman. “I told you that I wanted the car through Sunday.”
“That’s not how I remember it,” said Dov. “We decided not to include Sunday. Can’t you take your parents to the airport in your car?”
“With them and the luggage, we’d only have room for one other person,” Kalman replied. “We’d all like to go and say good-bye. It’s not like we get to see them often. Can’t your family fit in your other car for the bris?”
“It will be extremely tight, and the kids will go crazy,” said Dov. “It’s almost a two hour drive.”
“It’s a big problem,” said Kalman. “We paid for the car and borrowed the luggage bag till Sunday, as we agreed. It’s your word against mine, and since I holding them in my possession now, I should be believed.”
“But it’s my car!” argued Dov. “Of course I’m in possession. And, regarding the luggage bag, you didn’t even pay anything to borrow it. So even if we included Sunday, I don’t see why I can’t demand it back now.”
“No point in arguing,” said Kalman. “Let’s ask Rabbi Dayan.”
Dov called Rabbi Dayan. “I rented Kalman my mini-van and lent him my luggage carrier bag. There is a dispute between us whether we included Sunday in the agreement. Who’s believed?”
“Kalman is entitled to hold the rented and borrowed items until the time he claims,” ruled Rabbi Dayan.
“Why is that?” asked Dov.
“The Gemara [B.M. 102b] discusses the case of a rental whose time frame is questionable,” replied Rabbi Dayan. “The ruling should be hamotzi meichaveiro alav hare’aya (the burden of the proof is on the plaintiff). Regarding real estate, the landlord is considered muchzak (in possession) of his property and has the upper hand. However, regarding movable property, such as a car and luggage carrier, the renter is considered muchzak (in possession).”
“What is the difference?” asked Kalman.
“Tosfos [B.M. 103a s.v. pardisei] explains that although the rental item is supposed to return to its owner, the renter physically holds it and can hide it from its owner,” replied Rabbi Dayan. “Therefore, it differs from real estate that cannot be grabbed and hidden away from the landlord. Thus, Kalman is currently in possession of the item, and Dov is trying to claim it from him early, so the burden of proof is on Dov to prove that Sunday was not included.” (See Shach 312: 14; SM”A 341:21; Nesivos 341:14; However, see Pischei Choshen, Sechirus 1: citing Erech Shai.)
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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