Pesach was over. “It’s time to restock,” Mrs. Halperin said to her husband. “I’m going shopping tonight.”
“Do you want me to come?” Mr. Halperin asked.
“No, I’ll manage myself,” Mrs. Halperin answered. “Thank you for asking.”
Mrs. Halperin went to the supermarket. She walked inside and took a shopping cart.
Up and down the aisles she walked, loading the cart. Finally, she headed to the checkout counter.
Suddenly, a clearly non-Jewish youth grabbed the cart and began pulling it.
“Stop! Thief!” yelled Mrs. Halperin. She tried holding onto the cart, but the youth easily overpowered her and headed out the door with the laden shopping cart.
Mrs. Halperin reported to the store manager what happened.
“Unfortunately, we’ve had several robberies like this recently,” the manager said. “Obviously, we’re not holding you liable. I apologize for the trouble.”
Mrs. Halperin got another shopping cart and redid her shopping.
“You won’t believe what happened!” Mrs. Halperin exclaimed when she returned home. “I was nearly finished shopping, about to check out, but a youth grabbed the shopping cart and headed out the door.”
“I’m glad you’re OK,” replied Mr. Halperin. “What did you do?”
“What could I do?” answered Mrs. Halperin with a shrug. “He was stronger than I am. Had you been there, it would have been a different story!”
“What did the store say?” Mr. Halperin asked.
“That they’ve had several such robberies recently,” answered Mrs. Halperin, “and obviously won’t hold me liable.”
“Hmmm…” Mr. Halperin mused. “I wonder what the halacha would be had the store not exempted you. Although it’s not your fault, you essentially borrowed their shopping cart, and it was stolen from you. Why shouldn’t you be liable as a borrower?”
He called Rabbi Dayan and asked, “Would my wife be halachically liable for the shopping cart?”
“There are four possible reasons to exempt her,” replied Rabbi Dayan.
“First, although your wife seemingly borrowed the shopping cart from the store, the comprehensive liability of a borrower – even for oness (circumstances beyond one’s control) – is because the benefit is all hers (B.M. 94b). The shopping cart, though, is to facilitate the store’s earnings – not just for her convenience.
Thus, presumably she could be liable only as a socher – renter – of the shopping cart, i.e., for theft (geneivah), but not for circumstances beyond her control (oness).
Although the cart was stolen, when the renter is present and unable to save the item, she is not liable – certainly if she tried unsuccessfully to do so (C.M. 303:2,5).
Second, there likely is no expectation of the store, nor intent on her part, to take guardianship responsibility for the shopping cart, similar to a guest who uses the host’s utensils but may not be liable as a borrower for damage not his fault (Pischei Choshen, Pikadon 9:69).
Third, because the incident occurred during use, the exemption of meisah machamas melacha might apply, which is relevant also to a renter (C.M. 340:3; Pischei Choshen, Pikadon 10:2).
However, the Rosh and Ramban, cited by the Rema and Shach (340:5), maintain that meisah machamas melacha applies only when the loss was a direct result of the use itself and/or due to the inadequacy of the borrowed item, so is not applicable here (Pischei Choshen, Pikadon 10:10).
Fourth, Rambam maintains that a guardian must make a valid kinyan (like when acquiring an item) to obligate him in guardianship (C.M. 291:5).
Something large and heavy, like a shopping cart, is usually acquired through meshicha – pulling it. Meshicha is not valid in the owner’s property nor in a public area (reshus harabim), only in the borrower’s property or a semi-public area (simtah) (C.M. 197:2; 198:1).
Thus, because your wife used the shopping cart only on the store’s premises, she did not make a valid kinyan to obligate her in a renter’s responsibility.
Nonetheless, Nesivos (306:1, 340:8) rules that someone who begins using an item, even without any act of kinyan – e.g., someone who sits on a bench – is liable as a renter or borrower, but some Acharonim question this (Minchas Pittim 306:4; see Pischei Choshen, Pikadon 9:27[69]; Sechirus 1:1).
“Possible liability for the stolen groceries,” concluded Rabbi Dayan, “requires a separate discussion.”
Verdict: Mrs. Halperin would not be liable for the shopping cart because she would be considered a renter and was unable to prevent the theft; had no intent of guardianship; the exemption of meisah machamas melacha applies; or the absence of a valid kinyan precludes liability.
