Q: I borrowed my friend’s car, and the police pulled me over because the registration had expired. The car was impounded, and I had to pay $175 to get it out. Am I responsible for that $175, or is my friend required to reimburse me?
A shoel (borrower) is generally liable for onsim (losses or damages to the borrowed item due to circumstances beyond his control).
The Rishonim offer two reasons why a shoel is liable for onsim. Some say that because he is the sole beneficiary for the time that he borrowed the item, he is considered to have acquired it from the owner for the period that it will be in his possession, so when it is damaged, it is as though his own object was damaged (Tosafos, Bava Kamma 11a; s.v. Ein; see Nesivos 344:1). Others explain that it is because a shoel willingly accepts upon himself to be liable for damages caused by onsim (Tosafos, Kesubos 56b, s.v. Harei, as explained by Ketzos HaChoshen 291:4).
Nevertheless, if a borrowed item is damaged in the course of normal use (meisah machmas melachah), then even a shoel is not liable (Shulchan Aruch, Choshen Mishpat 340:1). The Ramban (Bava Metzia 96b, cited in Shach 340:5; see also Sma 340:3) writes that this is because the owner was negligent in lending an object that was incapable of sustaining normal use, as opposed to all other onsim, for which the shoel is liable because the owner was not guilty of negligence in lending it to him (Rashba to Bava Kamma and Machaneh Ephraim, She’eilah 4 offer alternative explanations for this halachah).
The Ramban’s logic applies to our case as well; because the oness was due to negligence on the part of the lender which caused the car to be impounded, the borrower is not liable.
Another reason that the borrower might not be liable in our case is that the owner was negligent in lending him an object that had such a significant flaw that had the borrower known about it, he wouldn’t have borrowed it. And had he not been a shoel, the stringent responsibilities of a shoel would not have applied to him.
The Maharik (155, cited in Rema 291:4) discusses a case in which Reuven hired Shimon to transport books for him from one place to another, and he lied to Shimon, telling him that there are no customs fees associated with bringing those books to the other place. The customs officials seized the books, and Reuven demanded that Shimon reimburse him for the seized books. The Maharik accepted Shimon’s claim that had he known that there actually was a tariff, he would never had agreed to transport the books because he did not want to deal with the tax authorities, and he is therefore exempt from any liability.
The Acharonim discuss what type of case this applies to. Some say it applies only if the loss was due to the owner’s misleading the person who agreed to guard the item (a person who is paid to transport something is considered a shomer — guardian — of that item). If the loss was unrelated to anything the owner did, the shomer is liable (Shaar Mishpat 291:4; Machaneh Ephraim, Shomrim 13).
Others argue that because in this case, Shimon would never have accepted upon himself to transport the item had he known about the customs issue, then his agreement to transport the item was made under a mistaken premise and he is not a shomer at all and therefore not liable, regardless of whether the eventual loss or damage was related to Reuven’s having misled him (Maharik ibid; Erech Shai 291:4; Shu”t Chelkas Yoav, Even Ha’ezer 34; Ohr Samei’ach, Nizkei Mamon 4:11).
Some write that it depends on why a shoel is liable for onsim. If it is because the Torah views him as the owner (as cited from Tosafos in Bava Kamma; see Chazon Ish, Choshen Mishpat, Likutim 12:14), then if the damage to the item is unrelated to the owner’s misleading him, he is required to pay. But if he is responsible because that’s what he agreed to (as cited from Tosafos in Kesubos; see Ketzos 291:4 and 340:1), in this case he will not be liable because he didn’t accept upon himself responsibilities when misled by the owner (Chelkas Yoav ibid.).
Returning to our case, if, for instance, the car were not impounded, but rather had been damaged when a tree limb fell on it, according to the first opinion the borrower would be obligated to pay, but according to the latter opinion, he would not be liable.
Because in our case, the damage (having to pay the impounding fee) was directly related to the owner’s negligence of not informing the borrower that the registration had expired, the borrower is not responsible for retrieving the car from the impound lot according to all Poskim.
In the coming issue, we plan to discuss what happens if the borrower decides to retrieve the car from the impound lot: Is the owner required to reimburse the borrower?
