The Liability of a Shoel

  • Rav Moshe Taragin

            The Mishna in Bava Metzia (94a) describes the four distinct categories of Shomrim - people who safeguard others' possessions and items.  A Shomer Chinam (who guards without charge) is only liable for gross negligence while a Shomer Sachar (a paid watchman) and a Socher (a renter) must compensate the owner for theft as well as loss.  In all the above cases however pure accidents (Onsin) involving the guarded objects do not require their compensation.  These watchmen only pay for their negligence - either gross or moderate.  The sho'el is unique in that he must repay the owner even if a pure accident occurred.  This unique level of liability and what it indicates about a sho'el forms the basis for this article. 


            Intuitively, there is no inherent reason for the sho'el's liability for O'nes (accidents).  Evidently it is merely the product of "Hitchaivut" - a level of liability which a person can voluntarily accept upon himself.  The classic instance of this occurs in the Gemara Bava Batra (173b) which posits that a guarantor can unilaterally accept liability if the borrower does not repay the loan.  There is no independent foundation for this chiyuv other than the initiative of the guarantor.  The gemara locates the incentive for this volunteerism: the Guarantor recognizes that as word of his altruism spreads his reputation will be improved.  People will discern within him a reliable person whose 'word' brokered the ultimate loan.  The benefit he receives inspires him to accept these obligations.  However it is his acceptance alone which establishes the Halakhic foundation of the Chov.  Similarly in the case of a sho'el there is no inherent reason that he should be liable for Ones; he merely agrees to establish this coverage and is motivated to do so because of the utility he receives from the item. 


            An alternate view might be based upon the statements of the Rambam in Hilkhot Sh'eila U'pikadon (1:5).  The Rambam compares the sho'el's rights to an item to those of a Loke'ach (one who actually purchases an item) but only for its utility (rather than actually purchasing the item proper).  Though they exhibit several notable differences they are similar in that both the Loke'ach and the sho'el actually OWN the PEIROT (utility).  According to the Rambam the Loke'ach is not merely using the animal based upon the allowance of the owner.  Instead he temporarily enjoys some degree of OWNERSHIP over the borrowed item.  The Rambam cites a Halakha which best highlights this status.  If a sho'el dies his children inherit his stake in the animal.  Were his use of the animal based solely upon the allowance of the owner his children would not automatically receive this right; it was only granted to their father.  However since the father actually OWNED these rights they are inherited by his children as part of his estate. 


            To be sure, in this section the Rambam does not address the source for the sho'el's liability.  However based on his comments we might derive a different understanding.  If indeed the utility which the sho'el enjoys defines him as a temporary and partial owner he might naturally absorb any and all accidental losses just as an Owner does.  If my car gets hit by lightning I as owner suffer the loss.  Similarly the utility which the sho'el enjoys might characterize him as partial owner and the one who ultimately is liable for accidental damage. 



            We have suggested two different models for the comprehensive coverage which the sho'el affords.  Either he willingly accepts and establishes this liability (Hitchaivut) or liability evolves as a function of his status as partial Ba'al.  Consequently we might define the utility he receives as that which inspires him and provides incentive for his voluntary acceptance of liability.  Alternatively we might view the utility as that factor which defines him as partial owner.  Rashi in Sanhedrin (72a) clearly articulates this possibility and indeed compares a Ganav to a sho'el.  A Ganav might be another person who though not the full legal owner, enjoys some partial Kinyanim. 


            Several issues stem from this fundamental question:


            In the case of a sho'el who never voluntarily accepted liability but used the animal, is he forced to cover accidental damages?  Indeed the most apparent example is a sho'el who uses an item without permission or prior agreement - A sho'el Shelo Mida'at.  Is he liable because he used the item even though he never accepted liability?  This case however should not be used as a litmus, because even if we don't consider him a sho'el he probably would be a Ganav who is liable to compensate the item anyway.  Hence this might not provide the ideal 'test case.' 


            A more useful case however pertains to the inheritors of a sho'el.  As we noted above they inherit the rights to use the animal.  Once they benefit, however, are they automatically obligated to pay for accidental damages?  On the one hand there has been no deliberate acceptance of liability on their part.  On the other hand, they are using the item and enjoying the same partial ownership which carries with it an obligation to compensate accidents.  This issue is a Machloket between opposing positions cited by the Rashba in Ketubot (34b) in the name of the Ra'avad.  Quite possibly the debate revolves around the source of a sho'el's chiyuv. 


            Another question which stems from the original inquiry surrounds to whom payment should be made.  Suppose a sho'el borrowed the animal from someone who is not the original owner.  The Mishna in Bava Metzia (35b) presents a case in which a renter subsequently loaned his rental to a third party (his legal right).  Does the sho'el (the only person liable for accidents) remit payment to the renter (with whom he struck his agreement) or to the original owner (who actually owns the animal)?  The answer depends upon the source of a sho'el's chiyuv.  If his agreement obligates him we might offer payment to the one with whom he reached agreement.  If however his objective status as ba'al obligates him we might offer payment to the original owner, who status was transferred to his sho'el.  This very question is a Machloket Tana'im in Bava Metzia (35b).


            Another issue which reflects the source of a sho'el's chiyuv stems from the point at which the sho'el's liability begins.  The gemara in Bava Metzia (99a) cites several examples.  According to one position in the Gemara once the sho'el indicates to the owner that he should direct the animal to his Reshut his liabilities begin - EVEN BEFORE THE ANIMAL EVEN ENTERS HIS RESHUT.  Afterwards the gemara cites a second position that the sho'el's Obligation only begins once he performs a Meshicha - SIMILAR TO A ‎LOKE'ACH.  Possibly these two positions in the gemara dispute the source of a sho'el's obligation.  If his Hitchaivut (agreement) creates liability it might begin from any fixed point of agreement - any point at which the sho'el indicates his readiness to 'get the show on the road.'  If however his status as owner obligates him, his liability might only begin once he actually transfers the item to his Reshut - as a Loke'ach does. 


            A third area of discussion might surround the type of benefit which a sho'el must receive in order to trigger his liability.  If the benefit serves merely as incentive to accept liability we might view ANY benefit as capable of producing this incentive and obligating a sho'el.  If however the utility defines him as Ba'al we might only apply the laws of sho'el if he derives the standard benefit which conventional owners receive. 


            The gemara in Bava Metzia (96a) raises several cases of non-conventional use: one who borrows an animal for sexual breeding, one who borrows it to keep on his estate and appear richer than he is (without actually using the animal per se), and one who borrows two animals and receives a sum total of a pruta's worth of benefit without actually using either animal a Pruta's worth.  In each of these cases the gemara questions whether the borrower actually becomes a sho'el with a sho'el's liability.  Again if the benefit merely inspires the sho'el to unilaterally accept liability we might not understand the gemara's hesitation to establish the full form of sho'el in this instance.  Why do we care about the exact nature of the sho'el's benefit - after all, he benefited and offers his coverage in exchange? Evidently his utility is not merely incentive but part of what defines him as an owner and obligates him to be liable as an owner.  If this is so the gemara is correct in inspecting what type of 'use' does and does not define him as owner.  Can 'abnormal' use be considered 'using it as owner'? Can parking the car in your driveway without actually driving it be considered the actions of an owner?  What happens if less than a Pruta's worth is derived?  You have achieved no monetary benefit whatsoever!!!  By debating the nature of the benefit the gemara might have been addressing its role in establishing the liability of a sho'el. 





            We have witnessed that the fundamental question pertaining to the source of a sho'el's liability for accidents might influence a range of specific questions governing a sho'el. 

            What happens if a sho'el uses the item but never accepts obligation?  When does the liability begin?  What role does the benefit play in establishing the Chiyuvim?





1.  Fundamental questions could potentially affect all variables of a particular Halakha.  Not only would the parameters of a sho'el's liability (when and to whom) be impacted by the nature of his liability, but the role and type of benefit required (hana'a) might be affected by its role in triggering his liability.


2.  Obligations very often are based either upon unilateral acceptance or upon some aspect of the 'relationship' which itself obligates payment.  A Mazik never accepted to pay but his negligence obligates him.  Alternatively one who pledges Zedaka starts with no absolute obligating factor but through his pledge creates one.  What about a Borrower of money?  Does he pay because he received funds (and this somehow obligates him Halakhically to repay the loan) or because he agreed to obligate himself?