Reuven was leaving yeshiva for Shabbos to visit his grandparents.
“Do you have a Ketzos that I can borrow for the weekend?” he asked his chavrusa, Shimon. “I have two copies at home but forgot to bring one with me.”
“Yes, I bought one two weeks ago,” Shimon answered. “I haven’t had a chance to use it yet.”
“Then I’ll be happy to put it into use!” replied Reuven.
Shimon handed him the Ketzos. “It’s brand new,” he said. “I haven’t even removed the price sticker.”
Reuven looked at the price. “$35 you paid for it?!” he said. “I can get that edition for $25 at Yankel’s Sefarim.”
“Maybe on sale…” said Shimon. “Most places I priced were in the range of $30, but I got a gift certificate to that particular store for my birthday, so I bought it there.”
During the weekend, Reuven lost the Ketzos. When he returned, he apologized to Shimon. “I have a spare, unused copy of that edition at home that I’ll give you,” he said. “I have another edition with footnotes that I use.”
“Actually, I was thinking that I also prefer the edition with footnotes,” Shimon said. “Because you lost my Ketzos, I prefer that you pay me cash, and I’ll buy the better edition.”
“Why should I pay you cash when I can return to you exactly what I borrowed?” replied Reuven. “I don’t have a real use for my spare copy and much prefer giving it to you than paying cash. Anyway, I’m certainly not paying $35, when I can get it for less.”
“I don’t see why not,” Shimon argued. “You lost something that cost $35 and was brand new. If you wouldn’t have a spare copy, you’d have to pay cash, so it’s not fair to make me accept your spare copy!”
The two approached Rabbi Dayan and asked, “Can Reuven give Shimon his spare copy, or must he pay cash? How much?”
“A borrower, or other guardian, who loses the entrusted item is liable for its monetary value,” replied Rabbi Dayan. “He is not required to replace the item” (Shach 291:2; Chazon Ish B.K. 8:15-16).
“The item’s value is assessed according to its fair market value at the time and place of the loss, regardless of the price that the owner paid for it, whether higher or lower (Ketzos 291:1). If the item was in used condition, the borrower is liable only for its value as a used item.
“Nowadays, most items can be bought or ordered online from various vendors for significantly different prices, so it is hard to establish a clear fair market value. Presumably, we follow some median value (C.M. 103:2; Sma 103:5).
“Moreover, if the item was only partially damaged, the borrower is not required to replace or repair it, but is entitled to return the damaged item and add the loss of value (C.M. 344:2; Pischei Choshen, Pikadon 8:[49]). If he wants to return a new item for neighborly or moral reasons, he is allowed to, and there is no concern of ribbis when the item itself was meant to be returned (she’eilah, as opposed to halva’ah).
“In most situations, though, the lender is happy to have the borrower replace the item rather than pay its value. However, if he demands cash payment, whereas the borrower wants to replace the item, in principle the lender has a valid claim, because the guardian’s liability is for the item’s value, not replacement.
“Nonetheless, the Gemara (B.K. 7b) teaches that regarding payment of property damage and guardians – not of loans – movable items are equivalent to meitav (high-quality real estate) and even cash payment. Thus, Reuven can pay with a replacement item in lieu of his cash liability (C.M. 419:1; Shach 419:3).
“However, the cash value of movable items is what the plaintiff could readily get when selling the item,” concluded Rabbi Dayan. “Nowadays, even a new replacement item would likely not have the full cash value, because if Shimon would try to sell it, he would likely not get the full fair market value. Thus, while Reuven could ‘pay’ with his Ketzos, he might have to add a few dollars” (C.M. 101:9).
Verdict: A borrower’s primary liability is for the fair market value of the item, or its depreciation if partially damaged. He can return, though, a replacement item of equivalent cash value.
