Understanding the Nature of a Sho'el's Obligation
TALMUDIC METHODOLOGY
By Rav Moshe Taragin
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This
shiur is dedicated by Mr. and Mrs. Harold N. Rosen
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This week's shiurim
are dedicated
in memory of Mrs. Cela Meisels, Tzerka Nechama bat
Shlomo,
whose yahrzeit falls on the 14th of
Tevet.
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Lecture #04: Understanding the Nature of a Sho'el's Obligation
Unlike other types
of shomerim, a shoel pays for any and every damage to the item he
borrows; even if he wasnt responsible or negligent and even if the damage was
purely accidental, a shoel must render payment. The simple understanding of a
shoel would suggest that he unilaterally offers to cover all
calamities to reciprocate the benefit he has received. As a shoel may use the borrowed
item without actual payment, he is forced to offer some form of
compensation. Covering the item
against any loss even if unrelated to any negligence - is the compensation
which the shoel offers the owner.
The coverage is offered quid pro quo for the benefit
received.
Several
Rishonim, however, in various different contexts voice a formulation of a
shoel which views his unqualified payment responsibilities as a result
of some larger status. By enjoying
full utility of the item and actually taking the item in to his possession, the
shoel may enjoy a limited form of halakhic OWNERSHIP. This status as partial owner may
OBLIGATE him to pay for any losses.
After all, when accidents occur, it is typically the owner who pays for
the loss by absorbing it. Perhaps a
shoel must act as owner and therefore must absorb any and every loss,
even independent of his guilt.
This status would
establish a potential similarity between a shoel and a
ganav. On the surface, these
two individuals couldnt be more dissimilar. The shoel reaches an agreement
with the owner, whereas the thief acts independently and opposed to the
interests of the owner. However,
they share one commonality: they each physically remove the item from the
owners possession and each must pay for any loss to the item, even
accidental. Perhaps their point of
convergence is that they each achieve a status of partial ownership and must
absorb all losses, even accidental ones.
It would certainly
appear that way from Rashis comments to Sanhedrin (72a; s.v.
Aval), in which he explains the reason that a shoel pays: Since
he receives all benefits, the item is legally considered in his [partial]
ownership, JUST AS IT IS IN THE INSTANCE OF A GAZLAN. Similar sentiments emerge from the
comments of the Ramban to Bava Batra (168a) in which he refers to a
shoel as a purchaser until he returns the item. Although the Ramban does not compare the
shoel and the gazlan, he associates a shoel and a
lokeiach.
An even more direct
assessment of the shoels partial ownership and the role of that status
in determining comprehensive payment can be detected in a Rashba in Bava
Metzia. In his comments to
Bava Metzia (36), the Rashba claims that since he receives all the
hanaah, the Torah placed the item in the reshut of the
shoel, as if it were his.
Here again, the ownership of the shoel is articulated and
viewed as the source for his responsibility to pay even in the event of an
accident.
Interestingly, a
Ritva on Bava Metzia (43a) would appear to reject this view of
shoel and distinguish BETWEEN a shoel and gazlan. The Ritva comments upon a situation in
which the stolen or borrowed item decreases in value from its original value at
the point of theft or lending. The
gemara obligates the thief to pay the original (higher) value. The Ritva distinguishes between
shoel and gazlan; UNLIKE the gazlan, the shoel may
pay the current (reduced) value of the item. The gazlan pays for removing the
item from the possession of the owner (in his attempt to establish his own
ownership). The gazlans
MOMENT of obligation occurs when he stole the item and he must pay back the
value of the item at that moment. Unlike a gazlan, a shoel DOES
NOT halakhically remove the item or become a partial owner. Presumably, he pays solely because he
agreed to cover all possible scenarios, and that obligation is in effect at only
the MOMENT OF THE ACCIDENT. He
therefore must pay only the value of the item at the time of the accident. Evidently, the Ritva rejected the view
of shoel asserted by Rashi in
Sanhedrin.
This alternate view
of shoel that he pays because he is considered a quasi-owner - may
impact several interesting halakhot about a shoel and, in
particular, his manner of payment.
Tosafot in Bava Kama (11a) raise the question of whether a
shoel must pay the entire value of the original borrowed item or only
the differential between the original value and the value of the damaged
item. In other words, do we perform
a shamin assessment, compelling the shoel to pay only for the
loss, or do we demand that the shoel pay the entire value of the item
(and, of course, offer him the damaged item in return, since he has offered full
reparation)? Tosafot claim that a
shoel must offer full reparation because he acquired ownership of the
item once he removed it from the possession of the original owner JUST AS A
GAZLAN [acquires ownership from the moment of theft and must pay the
entire value of the stolen goods, not just the differential]. Tosafot not only describe a shoel
as acquiring full ownership; they affirm the same shoel-gazlan
correspondence that Rashi invoked in Sanhedrin.