TALMUDIC METHODOLOGY

By Rav Moshe Taragin

Lecture #04:  Understanding the Nature of a Sho'el's Obligation

Unlike other types of shomerim, a sho’el pays for any and every damage to the item he borrows; even if he wasn’t responsible or negligent and even if the damage was purely accidental, a sho’el must render payment.  The simple understanding of a sho’el would suggest that he unilaterally “offers” to cover all calamities to reciprocate the benefit he has received.  As a sho’el 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 sho’el 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 sho’el 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 sho’el 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 sho’el 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 sho’el and a ganav.  On the surface, these two individuals couldn’t be more dissimilar.  The sho’el 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 owner’s 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 Rashi’s comments to Sanhedrin (72a; s.v. Aval), in which he explains the reason that a sho’el 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 sho’el as “a purchaser” until he returns the item.  Although the Ramban does not compare the sho’el and the gazlan, he associates a sho’el and a lokei’ach. 

An even more direct assessment of the sho’el’s 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 hana’ah, the Torah placed the item in the “reshut” of the sho’el, as if it were his.”  Here again, the “ownership” of the sho’el 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 sho’el and distinguish BETWEEN a sho’el 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 sho’el and gazlan; UNLIKE the gazlan, the sho’el 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 gazlan’s 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 sho’el 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 sho’el asserted by Rashi in Sanhedrin.

This alternate view of sho’el – that he pays because he is considered a quasi-owner - may impact several interesting halakhot about a sho’el and, in particular, his manner of payment.  Tosafot in Bava Kama (11a) raise the question of whether a sho’el 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 sho’el to pay only for the loss, or do we demand that the sho’el 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 sho’el 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 sho’el as acquiring full ownership; they affirm the same sho’el-gazlan correspondence that Rashi invoked in Sanhedrin.