May I borrow your car for the evening?” Yehuda asked his neighbor Daniel. “I want to visit a friend in another town.”
“You’re welcome to use it,” said Daniel. “It’s an old car, though, not worth much, so I have liability insurance but no collision coverage.”
“That’s OK,” said Yehuda. “I don’t expect to get into an accident.”
Yehuda stopped along the way to eat. He parked on an incline, so he applied the handbrakes.
When Yehuda resumed driving, he forgot to release the handbrakes. After driving on the highway for about twenty minutes, he smelled an odor of something burning. He stopped and checked the motor, but it seemed fine. He continued on.
Only when reaching his destination did Yehuda notice that the handbrakes had been on. “You might have damaged the brakes!” his friend said. “You can’t drive home until they cool down and you check them.”
After spending two hours with his friend, Yehuda got into the car and tried the brakes; they seemed to respond. “I’ll take a spin around the block,” he said.
“The brakes seem OK,” Yehuda told his friend. “I’m going to head home.”
On the way, Yehuda tested the brakes and they responded. But then at one point a truck slowed down in front of him. Yehuda hit the brakes – but they didn’t respond. He veered into the shoulder and crashed into the barrier.
Fortunately, Yehuda was not injured, but the car was totaled.
“You were negligent to drive with the handbrakes on,” Daniel said. “You clearly burnt the brakes.”
“It’s unlikely that the brake failure was due to the handbrakes, since they only grasp the back wheels,” replied Yehuda. “Also, I tested the brakes afterward and they responded. They probably failed for some other reason, unrelated to me.”
Yehuda and Daniel came before Rabbi Dayan. “Is Yehuda liable for the car?”
“Yehuda is liable,” ruled Rabbi Dayan, “since some possibility remains that his negligence contributed to the brake failure.”
“Can you please explain?” asked Yehuda.
“A borrower is liable – even if the borrowed item was lost through circumstances beyond control [oness] – unless the item failed through normal use [meisa machamas melachah],” explained Rabbi Dayan.” Thus, the Rambam [Hil. She’eilah 1:1] writes that if a person borrowed an animal to ride on and it died while traveling, the borrower is exempt.”
“However,” continued Rabbi Dayan, “the Rosh [B.M. 8:4], cited by the Tur and Rama [C.M. 340:3] qualifies this. He maintains that the borrower is exempt only if the animal died because of the work, e.g., it tripped or exerted and overheated. However, if there was no indication of stress, the borrower cannot swear that the animal died because of the work; maybe it died naturally. Thus, he remains liable.”
“What is the root of this dispute?” asked Yehuda.
“Beis Yosef defends the Rambam’s position, that we cannot obligate the borrower out of doubt when it may have died from work,” replied Rabbi Dayan. “Furthermore, since the animal died en route, it likely died from the work; the borrower simply swears that it died while traveling.”
“What about the Rosh?” asked Daniel.
“The Shach [340:7] sides with the Rosh and Rama,” replied Rabbi Dayan. “He explains that the borrower must swear with certainty what happened to the animal. Furthermore, since no exertion was noticed we cannot presume that the animal died due to the work.”
“Here there is a good chance, though, that the brake failure was not due to the handbrakes,” said Yehuda.
“Still, the Ketzos [291:11; 340:4], based on the Ra’ah, writes that when it is not known what happened to the item, the borrower is exempt [aini yodeia im nischayavti],” Rabbi Dayan said. “However, he agrees that if the borrower was initially negligent he remains liable [aini yodeia im p’raticha], certainly if the loss can be remotely linked to the negligence [techilaso b’pshia v’sofo b’oness], as in our case.”
“Thus,” concluded Rabbi Dayan, “Yehuda remains liable unless it is ascertained that the brake failure was completely unrelated to the handbrakes negligence.”Rabbi Meir Orlian