Print this Article
Liability for Borrowed Mitzvah Items / By Rabbi Ariel Ovadia
As Simhat Torah was nearing by, Reuven – the devoted Gabbai of the small Sephardic Minyan in his town – scrambled to find a third Sefer, so that they would be able to conduct the readings in the proper fashion. He finally convinced one of his cousins, Jack Levy, who had donated a Sefer Torah to an established synagogue in the big city, to ask for the Sefer to be lent out to their Minyan. “I will make sure that nothing happens to the Sefer”, Reuven had promised, and indeed, during the first round of Hakafot, Reuven kept the Sefer on the Tevah, so that the dancing wouldn’t accidentally damage it. That night, however, the most unimaginable event happened. The little house where the Minyan was housed was broken into, and the robbers took – among many things – the borrowed Sefer! Reuven was horrified. He did not want to think about the disrespect the Sefer may endure, let alone the damage his reputation would suffer. From a financial point of view, he had no idea how he or the members of the Minyan would come up with the exorbitant amount that the Sefer Torah was worth to pay back his cousin Jack.
The Liability of a Borrower
Generally, one who borrows an item (a “Sho’el”) is liable even if the cause of the damage was beyond his control. This is because “Kol Hana’a Shelo” – the borrower is the sole beneficiary of the object. In return for this great favor, the borrower assumes liability for anything that might happen.
Borrowing Sefarim
However, this case might be a bit different. The Mahane Efraim[1] discusses one who borrows Sefarim from his friend in order to learn Torah and they accidentally get damaged. He quotes the Teshuvot HaRan[2] who rules that he is not considered a borrower. This is because the lender – by fulfilling the Mitzvah of lending Sefarim – is entitled to a temporary exemption from doing other Mitzvot – such as giving Tzedakah (following the rule that one who is involved with one Mitzvah is exempt from another). The amount he is saving by not giving Tzedakah is enough to consider this transaction a mutually beneficial deal –where both the borrower and the lender have some form of benefit – thus, if the borrower is no longer the sole beneficiary he is also not liable for accidents.
[This logic is referred to in Halachah as “P’rutah D’rav Yosef” (loosely translated as: “Rav Yosef’s Saved Penny”). It is also applied to turn one who guards a lost object (a Shomer Aveda) into a “paid” watchman (Shomer Sachar), who carries a higher level of liability than an unpaid watchman (Shomer Hinam)].
The Ran’s ruling would seem to exempt Reuven from liability. Since there is a Mitzvah to lend Sefarim or Sifre Torah, it may be that the transaction between the Jack and Reuven did not render him a Sho’el, as the lender was a beneficiary as well. However, granting such an exemption to the lender, when he was already lending the Sefer, and especially if he is not physically involved in the process of giving the Sefer to Reuven may not be so simple[3].
Nevertheless, even if we were to declare that Reuven is not a bone-fide borrower, he should still be considered a Shomer Sachar (a paid watchman, a situation in which both the owner and the watchman are deriving benefit). Since a Shomer Sachar is liable in a case of a somewhat preventable theft, the Bet Din would have to decide whether or not this theft was a case of unforeseeable circumstance or a case of a preventable Geneva.
Enjoy Your Mitzvot
The Mahane Efraim argues on the Teshuvot HaRan and maintains that a Sefarim-borrower is not even considered a borrower, because the benefit he is receiving is not a physical benefit, but rather the benefit of fulfilling a Mitzvah. Following the rule of “Mitzvot lav lehenot nitnu” – a benefit derived from fulfilling a Mitzvah is not considered a benefit – Reuven is not deriving any halachic benefit from the Sefer Torah and must then be considered merely a Shomer Hinam – an unpaid watchman. Therefore, unlike the Teshuvot HaRan, the Mahane Efraim would exempt Reuven even in the case of a somewhat-preventable accident such as theft, as a Shomer Hinam would only be liable in a case of negligence.
A Non-Monetary Benefit
The Mahane Efraim cites a Gemara[4] that seemingly is inconclusive with regards to a non-monetary benefit rendering one a borrower (such as one who borrows an object just to show off and not to use). If indeed the Gemara does not definitively conclude that it is a benefit, then Reuven would be exempt from paying – at least in Bet Din – because we cannot obligate a defendant to pay when the Gemara is inconclusive.
However, according to the Rambam and others who understand that this Gemara is not dealing with a regular borrower, we may follow the logic of the Mahane Efraim and consider Reuven a mere Shomer Hinam.
Sources:
[1] Hilchot She’ela 3 [2] Siman 20 [3] דכה”ג לאו דוקא שיהיה פטור של העוסק במצוה כו’. וע’ נתה”מ (ע”ב סקי”ז) שהקשה על הר”ן דלדבריו אמאי לא פטור כל שואל מפרוטה דר”י, דהא מצות חסד להשאיל חפציו. ולכך ביאר דאף להר”ן מה שפטור היינו דוקא בשנתן משכון ואכמ”ל ע”ש, ולדבריו ודאי בנדו”ד מקרי שואל. [4] Bava Metzia 96a