Q: I rented an electric scooter for an extended period, and I allowed one of my friends to borrow it. While he was riding it, it was hit by a car and destroyed. The owner demanded that I replace it, so I bought a new one, but I used it for a few months before giving it to him. He now claims that I owe him rent for the months that I used the new scooter. Is he correct?
A: First let’s discuss whether the person who borrowed the scooter from you was liable for it.
A sho’el (borrower) is generally liable for damages, even if they were caused by an oness (circumstance beyond his control). It is possible, however, that this case can be classified as meisah machmas melachah (a borrowed object or animal that died during normal use), in which case the borrower is absolved of payment.
Some write that a borrower is not required to pay in a case of meisah machmas melachah because when the object breaks during normal use, it proves that the owner gave him a faulty item that was not usable (Ramban, Bava Metzia 96b; Rema, C. M. 340:3, with Shach 5). Others say that it is because, when the owner allowed the borrower to use his object, he knew that it might break as a result, and it is as though he decided to forgo any claim to damages caused during normal use (Ramah, cited by Tur 340:6, and Shulchan Aruch 340:3).
The practical difference between these approaches is in a case in which the object is not damaged due to normal use, but in the course of normal use — such as in your case, where the scooter was hit by a car. According to the first approach, the borrower is obligated to pay, since there was nothing wrong with the scooter, but according to the second approach, he is not liable, because the owner knows that this type of damage could occur during the course of normal use.
Since there is uncertainty which approach is correct, the borrower, who is the muchzak (holder of the money), is absolved (see Shu”t Minchas Yitzchak 2:88).
That would apply, however, in a case in which the sho’el borrowed the scooter directly from the owner. In your case, however, you, as a renter, had no right to allow someone else to borrow it (Choshen Mishpat 342:1). Does that make it similar to a case of a sho’el shelo midaas (someone who borrows an object without permission), who is considered a thief and is liable even in cases of meisah machmas melachah?
The Poskim rule that even though a person has no right to borrow an object from a borrower or renter, if he did so and the object broke during normal use, b’dieved (after the fact) he is absolved from payment due to meisah machmas melachah (Shu”t HaRashba, cited in Beis Yosef 342; Shulchan Aruch HaRav, sh’eilah 4; Shach 72:140, and Machaneh Ephraim 19. Cf. Pri Megadim, cited in Biur Halachah 637:3 s.v. ve’im and Avnei Miluim 28:50).
But this is true only if there are witnesses who testify that it was meisah machmas melachah or if the renter saw and can take the oath that it was, or if the owner believes the borrower’s claim that it was (Chochmas Shlomo 291:26). If, however, the owner does not trust the sho’el even if the latter is willing to take an oath, the owner is not required to believe that it was meisah machmas melachah (unless we know that he has rented this object to this sho’el in the past, which proves that he does trust him, or if he rents it out to anyone who is willing to pay; see Pis’chei Choshen, Pikadon 9 fn. 28 and BHI issue #557).
If it cannot be established that it was meisah machmas melachah, then the borrower is obligated to pay.
Now, in your case, as soon as the scooter was damaged, that was considered a termination of the rental. You were obligated immediately to either pay the owner the value of the scooter (cf. Rashash, Bava Metzia 35b) or replace it with one of equal value (see Nesivos 291:1).
Nevertheless, the fact that you delayed giving the new scooter to him — although wrong — does not obligate you to pay a rental fee, because the scooter did not belong to him until you actually gave it to him. He also has no right to demand that you pay him for the devaluation from when you bought it until you gave it to him, because you didn’t borrow a new scooter, so you weren’t required to repay with a new, one, only one of equal value (see further BHI issue #584).
