Mr. and Mrs. Horowitz were celebrating the Shabbos sheva berachos of their daughter, Avital. They were eating in the shul for the first two seudos, but were planning seudah shelishis in their house.
On Friday, with all the hustle and bustle, they were in and out of the house making the final arrangements. Their neighbor, Mrs. Kasner, came by holding a cake in a fancy glass serving-dish.
Ten-year-old Netanel answered the door.
“Are your parents home?” Mrs. Kasner asked.
“No, they’re out,” replied Netanel. “They’ll be back in an hour.”
“Well, I brought over a cake for the simcha,” Mrs. Kasner said. She came in and put the cake down on the counter. “Please tell your mother I’d like the serving dish back after Shabbos.”
When Mrs. Horowitz returned, she saw the cake. “Who brought this?” she asked.
“It’s from Mrs. Kasner,” said Netanel. “She wants the dish back after Shabbos.”
Mrs. Horowitz called Mrs. Horowitz. “Thank you so much for the cake,” she said. “What a beautiful dish.”
“Yes,” said Mrs. Kasner. “We received it for our wedding, but use it for special occasions.”
On Shabbos afternoon, Mrs. Horowitz was preparing the seudah shelishis. She carried the cake, in its serving plate, from the kitchen to the dining room. On the way in, a young nephew accidentally ran into her and knocked the plate from her hand.
The glass dish fell and smashed. Some people shouted, “mazal tov!” but Mrs. Horowitz burst into tears. “It was Mrs. Kasner’s dish,” she said. “What will I tell her?”
“We’ll have to try to get another one,” said her husband. “Don’t let it ruin the simcha.”
After Shabbos, Mrs. Horowitz notified Mrs. Kasner about the dish and asked where they might be able to find a similar one.
Meanwhile, Mr. Horowitz was wondering whether they were legally liable for the dish. “After all,” he reasoned to himself, “we never asked to borrow the dish. Mrs. Kasner left it of her own accord and it wasn’t my wife’s fault that it broke.”
Mr. Horowitz called Rabbi Dayan. “Our neighbor Mrs. Kasner left us a cake in a glass serving-dish without our asking. Are we legally liable for it as a borrower?”
“In general, a guardian has to accept responsibility for the entrusted item in order to be held liable,” replied Rabbi Dayan. “Many authorities also require that he make an appropriate kinyan [act of acquisition], such as picking up the entrusted item.” (C.M. 291:2,5)
“Does this apply also to a sho’el [borrower]?” asked Mr. Horowitz.
“According to some authorities, the rule of a sho’el is more stringent,” answered Rabbi Dayan. “The Nesivos (340:8) maintains that a sho’el becomes liable through usage alone – even without a kinyan, and even in the presence of the owner – such as if he borrowed a bench to sit on in the owner’s property.”
“What about a case in which the person never accepted responsibility for the item?” asked Mr. Horowitz. “Mrs. Kasner simply left the glass dish in our house; we didn’t borrow it or ask her for it.”
“A person who knowingly uses something, even without explicit acceptance of responsibility, is considered a sho’el,” answered Rabbi Dayan. “A similar case is mentioned by the MaBI”T [1:241].”
“Who was the MaBI”T?” asked Mr. Ploni.
“R. Moshe b. Yosef Trani, who lived about 500 years ago and emigrated to Tzefat,” replied Rabbi Dayan. “He was part of the beis din of Rav Yosef Karo and succeeded him as rabbi of Tzefat.”
“What was his case?” asked Mr. Ploni. “What did he rule?”
“There was a bride who lacked sufficient jewelry,” replied Rabbi Dayan. “A neighbor, of her own initiative, tied around the bride’s neck an expensive gold necklace, which was later lost. The MaBI”T was asked whether the bride was liable for the necklace as a borrower. He ruled that she is considered a sho’el. Since she knowingly used the necklace, she accepts responsibility for it.” (See also Machaneh Ephraim, Hil. Sho’el #5; Rama 346:17.)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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