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August 31, 2015 / 16 Elul, 5775
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Verbal Stipulation

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Chaim had an old car that he would regularly rent to the fellows of his kollel for a nominal fee. Moshe asked if he could use the car for the afternoon to do a couple of shopping errands. “With pleasure,” Chaim said. “However, before you take the car, I’d like you to read this statement of terms.” He asked Moshe to read the agreement:

  1. The user of the car shall pay $0.30 per mile.
  2. The user of the car is fully liable for it, even for uncontrollable circumstances (oness) and even for damage due to malfunctioning (meisah machamas melacha).

“Wow, that’s quite stiff!” exclaimed Moshe. “Usually, a person who rents something is liable only for loss and theft, but not beyond that.”

“I know, but I don’t want a headache afterward,” said Chaim. “This way, I know that I’m legally covered if anything happens.”

Moshe took the keys from Chaim. “Thanks a lot,” he said. “I expect to be back within two hours.” Moshe got into the car and drove off.

After about half an hour, the car suddenly stalled. Moshe tried, unsuccessfully, to restart it. He put the car in neutral, and with the help of some friends was able to push the car to a mechanic up the block.

The mechanic examined the car. “The transmission went,” he said. “Nothing your fault; it’s an old car. But you’re going to have to fix the transmission.”

“How much does it cost?” asked Moshe.

“It will run about $2,500,” said the mechanic. “No way around it, though.”

Moshe called Chaim. “You’ll never believe what happened!” he exclaimed.

“What?” asked Chaim, in a concerned tone.

“The car suddenly stopped,” Moshe said. “I managed to get it to a mechanic, who said the transmission went.”

“I’ll have the car towed to my own mechanic and have him check the car and do the job,” said Chaim. “You’re responsible for the repair, though. Remember, the agreement included even liability for malfunctioning.”

Moshe thought of his nearly empty bank account, and the various loans he had taken over the past year. “I never expected that this would really happen,” he said to Chaim. “Anyway, the mechanic was clear that it’s not my fault. It’s not really fair that I should have to pay for your old car’s malfunctions. The car is barely worth that much!”

Later that day Chaim related the story to his study partner. “I feel bad that Moshe should have to pay,” Chaim said, “but he read the terms and agreed to them.”

“I’m not sure your agreement is legally binding,” said his partner. “This is classic meisa machmas melacha, for which even a borrower is not liable. (C.M. 340:1) To accept an additional obligation usually needs a signed contract, a kinyan (act of transaction), or a handshake.”

“It seems to me that an agreement is an agreement,” said Chaim, “but I’ll check with Rabbi Dayan.”

Chaim called Rabbi Dayan and presented the issue. “Is reading the terms legally binding,” he asked, “even if not accompanied with any kinyan?”

“A renter who agreed to be responsible for uncontrollable circumstances (oness) is liable, even without a signed contract or kinyan,” answered Rabbi Dayan. “It is questionable, though, whether this is true for meisa machamas melacha.”

“What is this based on?” asked Chaim.

“The Gemara [B.M. 94a] teaches that a guardian (shomer), who is generally exempt from uncontrollable circumstances [ones], can stipulate and accept responsibility as a borrower [sho’el], who is liable even for oness,” explained Rabbi Dayan. “R. Yochanan maintains that he does not even need a kinyan; the fact that this boosts his reputation as a reliable person is sufficient for him to commit himself.” (C.M. 291:27; 305:4)

“And what about meisa machmas melacha?” asked Chaim. “Why is that a question?”

“The Ketzos Hachoshen [340:1] questions whether a borrower who accepts liability for meisa machamas melacha suffices with verbal stipulation alone,” replied Rabbi Dayan. “He links it to two explanations in the Tosfos, and cites an additional dispute between other Rishonim on the topic.”

“However, the Nesivos [340:2] rules that a verbal commitment suffices,” continued Rabbi Dayan. “He explains that, on account of the stipulation, the renter is like any other person who used the item without permission and is liable for damage. Aruch Hashulchan [C.M. 340:7; 291:57] also rules this way, provided that the stipulation is made when receiving the item; he enters the shemira with a greater responsibility.” (See Pischei Choshen, Pikadon 10:7[14])

“Where does this leave me?” asked Chaim.

“Since there is a dispute in the case of meisa machamas melacha, it is not possible to legally obligate the renter,” said Rabbi Dayan. “You should seek a compromise leaning in favor of the owner, as the Nesivos and Aruch Hashulchan rule that way.”

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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