Gauging the Payment Halakhot of a Sho'el
By Rav Moshe Taragin
This shiur is dedicated by Mr and Mrs Alan Kravitz on behalf of Elie Kravitz
Lecture #05: Gauging the Payment Halakhot of a Sho'el
The previous lecture discussed the nature of a shoels obligation to compensate for a borrowed item if it is accidentally damaged. Is this expanded coverage merely the product of the shoels self-obligation in recognition of the unlimited utility he has received? Or does the shoel achieve a quasi-owner status and absorb the loss, just as a true owner would in the case of accidental loss? We identified several Rishonim who invoked the partial owner status of a shoel as the source of his obligations.
This question may impact several interesting halakhot which govern a shoel. One question surrounds the manner in which a shoel arrangement is launched. From what point onward is a shoel obligated to cover payments? This question was already addressed by the Amoraim, and three distinct positions were asserted, two of which will be analyzed.
Based on a mishna in Bava Metzia (98b), Rav depicts a situation in which a shoel requests that the owner dispatch his animal to the reshut of a sho'el under supervision of a child. Whether or not the animal actually arrives, Rav claims that the shoel assumes responsibility for the animal as soon as it is sent by the owner upon the request of the shoel. This payment arrangement may suggest that a shoel must pay independent of any partial ownership status; it would be difficult to imagine him achieving such status before he actually takes control of the item and accepts it into his possession. If Rav is willing to obligate the shoel from an earlier stage, it may indicate that the shoels obligations are unrelated to his status as owner, if that status exists at all.
Tosafot sense the challenge of obligating a shoel prior to his receiving actual possession of the item. Tosafot provide two answers. In the first solution, Ravs halakha only applies if the animal exited the owners reshut DIRECTLY INTO A LEGAL ZONE OF THE SHOEL. Only in an instance in which a shoel actually performs a kinyan do his obligations begin. This adjustment of Ravs chiddush may be an attempt to link the shoels obligations to his partial ownership status.
However, in their final answer, Tosafot claim that even if the animal were to exit directly into a public domain, in which case the shoel cannot and has not performed an act of kinyan, the shoel is still obligated to render payment. Taking Rav literally may be based on severing the shoels payment obligations from any ownership status.
The gemara subsequently cites a dissenting opinion. R. Elazar claims that just as the Chakhamim established the concept of kinyan meshikhah to transfer legal ownership of portable items, they similarly instituted meshikha to affect the start of a shoel arrangement. Meshikha, physically moving an item into private property, is the selected manner to perform a kinyan act upon most portable items. R. Elazar appears to claim that the shoels obligations only begin once he has executed an act of meshikha. If accepted at face value, this may affirm that to be obligated to pay, a shoel must first perform an act of kinyan similar to the act that a purchaser performs. Not all Rishonim accepted the simple reading of R. Elazars statement, however. For example, Tosafot (Bava Metzia 99a) claim that even according to R. Elazar, a shoels payment obligations begin well before he executes an act of meshikha. The meshikha is only necessary to prevent the owner from revoking the terms of the agreement. Tosafot were unwilling to take R. Elazars statement at face value because this reading would highlight the role of the owner status in obligating the shoel.
Another fascinating question surrounds the possibility that a shoel might be obligated to pay even though he didnt formally reach an agreement with the owner. If the shoels obligation stems from his agreement to pay, it would be difficult to obligate him in the absence of such formal negotiations. However, if the shoels responsibilities are driven by his use of the item, a situation may arise in which the shoel benefits EVEN WITHOUT FORMAL AGREEMENT and he would still be obligated to pay. The gemara in Ketuvot (34b) describes a person who borrowed an item as a formal shoel and subsequently died. Since he had secured utility of the item for a specific term, his children may continue using the item even after their fathers death. The Rashba claims that although they may continue benefiting, they are not obligated to pay because they never agreed to terms with the original owner. In contrast, the Raavad maintains that the children must compensate the owner for any losses, even if they continue using the item. The Raavad thus introduces a scenario of a shoel obligated to pay despite never having agreed to terms with the owner.
Interestingly, the Rambam (Hilkhot Sheeilah U-Pikadon 2:11) describes a similar scenario. He discusses a woman who borrows an item and subsequently marries. If she informs her husband of the nature of the borrowed item and he continues to utilize it, he can be obligated in shoel payments once again, even though he never agreed to terms with the original owner. What makes this instance fascinating is that the Raavad disagrees with the Rambam, making his statements about the obligations of the orphans of a shoel that much more interesting.
In any event, the prospect of a shoel who has not formally agreed to terms but is obligated based purely upon his utility of the item may reflect the fact that a shoels obligations are based upon his quasi-owner status. If he utilizes an item without permission, he is branded a ganav and must abide by the payment details of a thief. Typically, he must negotiate with the owner to achieve the right of utility. However, his payment obligations do not stem for that agreement. Once he agrees to borrow and has been granted utility, his obligations stem directly from that utility and the partial owner status which it confers. The situations described by the gemara in Ketuvot and the Rambam describe cases in which a person enjoys legal utility without any formal authorization. Obligating these individuals to pay as a shoel would confirms that the shoel payments stem from legal utility and not from any specific agreement to pay.
It is intriguing to consider a reverse situation. What would happen if a shoel agreed to payment responsibilities but the type of utility he derives is not the type which would brand him an owner? What happens if a shoel borrows an item to use in a non-conventional fashion? The gemara in Bava Metzia (96a) discusses a shoel who borrowed an item for bestiality purposes and one who borrowed an animal to appear wealthy, without intention to actually work with the item. The terms of the gemaras question in this regard are unclear. Is the concern the non-conventional nature of the benefit or the fact that it doesnt involve direct work and labor with the borrowed item? Either way, the gemaras question is surprising. Why would the type of benefit received by the shoel interest us at all? The benefit is merely the trigger that causes the shoel to personally obligate himself to cover losses. As long as he accepts the arrangement, he should be obligated, regardless of the type of benefit!
Evidently, the gemara believed that a shoels obligations stem from his status as partial owner; the utility he receives brands him a partial owner and forces him to absorb even accidental losses. Perhaps atypical uses that dont directly employ the item for labor do not brand him as owner. Although he receives benefits, in the absence of quasi-owner status, he may not be obligated to pay.