This article was originally published in the American edition of the Yated Neeman
ACT I – The Fateful U-Turn
Location: THE HIGHWAY
Reuven missed his exit off the highway. Since it was a bright, clear day, he decided to make a U-turn to get back in the right direction. Although this was illegal, he did not consider it dangerous since the road was virtually deserted, except for a car coming in the other direction which seemed to be quite a distance away.
Reuven was mistaken. His car collided with the other vehicle. Fortunately, no one was injured, but both cars suffered significant damage.
The other driver, Shimon, considered Reuven responsible for the damage to his vehicle, although Reuven insisted that Shimon must have been speeding for the accident to have occurred. Shimon insisted that he was not speeding.
To complicate matters, the car Reuven was driving was not his own. That morning, his friend Yaakov had asked Reuven to drive him to the airport using Yaakov’s car. On the way to the airport, Yaakov mentioned that since he was leaving for a week, Reuven could borrow the car while he was gone.
After the accident, Reuven discovered that Yaakov’s car had no collision insurance, and worse yet, no liability insurance for any driver except Yaakov. Thus, there is no insurance coverage for the damage done to either vehicle.
Because Reuven would never have driven the car had he known it was uninsured, he claims that he never assumed responsibility for the value of the car when he agreed to borrow it.
Is Reuven liable for the damage to both vehicles? Although Reuven is over his head in debt, if he is halachically obligated to pay either Yaakov or Shimon, he will do so. But if he is not required to do so, he feels that he is not in a financial position to make the compensation.
Reuven, Shimon, and Yaakov submit the shaylah to a beis din for arbitration. They schedule an appointment and come prepared to present their cases.
ACT II – THE COURTROOM
Location: The offices of the beis din.
On the appointed day, the three litigants appear in the beis din. Shimon claims that Reuven must compensate him for the damage to his car, and that Yaakov should also be liable as the owner of an improperly insured vehicle. Reuven claims that Shimon is responsible for all the damages since the accident happened because of Shimon’s speeding. Yaakov claims that Reuven damaged his vehicle and is therefore obligated to pay for its repair.
Yaakov presents his claim against Reuven first, stating that he has claims against Reuven for two different reasons:
1. First, Reuven should be liable as the borrower of the car even if the damage was not his responsibility.
2. Second, Reuven is liable as a mazik, one who damages, since his negligence caused an accident.
Let us examine the validity of each claim separately, and then we will see what Reuven countered.
A sho’eil, a borrower, is responsible for almost any damage that takes place to the item he borrows, even if the damage is accidental and not caused by the borrower. (There are two circumstances where a sho’eil is not liable, but they do not apply here, and I am therefore omitting them from our discussion.) Yaakov claims that Reuven is responsible to make full restitution for the value of the car since he borrowed it.
Reuven turns to the dayanim and explains, “I believe that I am not a sho’eil according to halacha, but I have the halacha of a socheir, a renter, notwithstanding the fact that I paid no money. Furthermore, I claim that even as a socheir I am not responsible for the damages sustained as I will explain.”
WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?
A socheir is liable for damage if the item is lost or stolen, or if he is negligent, but he is not responsible for accidental damage. There is also another major difference in halacha between a sho’eil and a socheir that Reuven uses as an essential component of his defense, as I will explain.
WAS REUVEN A SHO’EIL OR A SOCHEIR?
In order to analyze this question, we need to explain why a sho’eil carries so much responsibility. The Gemara mentions that a sho’eil’s liability is so great because he gains all the benefits of the loan without any responsibilities in return. (This is called kol hana’ah shelo, “all benefits are to the borrower.”) Since the borrower receives all the benefits, the Torah obligates him to compensate the owner for any damage whatsoever, even if it was beyond his control.
However, any time the lender receives some compensation, even non-monetary, the arrangement is not kol hana’ah shelo and the borrower is not liable for accidental damage. In our situation, Yaakov received a chauffeured ride to the airport in exchange for Reuven’s borrowing the car. Halacha views this as if Reuven rented the car from Yaakov, paying him for the rental by driving him to the airport. This is enough to make Reuven into a socheir rather than a sho’eil, and exempts him from paying for accidental damages (see Shu’t HaRan #20).
BUT WAS THIS A CASE OF NEGLIGENCE?
Yaakov objects to Reuven’s defense. “Even if I received some benefit and you are not a sho’eil, you are still liable as a socheir because the damage was caused by negligence!”
However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower that we will now explain.
DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?
Reuven claims he would never have driven the car had he known it was uninsured. Therefore, he never assumed any responsibility for the car’s value and he is not liable for the damage. Does this defense have any merit?
The Gemara discusses a case where someone assumed responsibility for an item assuming it was worth far less than it actually is. If the item is subsequently lost, he is only responsible for as much value as he originally thought the item was worth (Shulchan Aruch, Choshen Mishpat 291:4). Thus, Reuven can legitimately claim that he was not responsible as a socheir of the car because he never assumed responsibility for its value.
BUT WHY DID REUVEN INSIST THAT HE WAS NOT A SHO’EIL?
Reuven first claimed that he was not a sho’eil because Yaakov had received benefit. Only then did he claim that he wasn’t even a socheir because he had never assumed any responsibility. This seems like an unnecessary step in his defense – let him simply claim that he never assumed any responsibility, whether as a sho’eil or as a socheir.
The answer is that there is a halachic difference between borrowing and renting. A borrower becomes responsible for all the damages even if he did not assume responsibility; that is, the fact that he uses the item without providing the lender any compensation makes him responsible (Machanei Efrayim, Hilchos She’eilah #1; Milu’ei Mishpat 346:8; cf. however Nesivos HaMishpat 346:8, who implies that even a sho’eil is not responsible under these circumstances). However, a socheir’s liability is limited to how much responsibility he assumed.
WHY IS A BORROWER DIFFERENT FROM A RENTER?
A borrower is responsible because of the concept of kol hana’ah shelo, “all benefits are to the borrower.” The circumstances are what make him liable, not necessarily his agreement. (Although the lender can agree to exempt the borrower from all damages, in the absence of such an agreement, the borrower is responsible for all damages.) Thus, a borrower claiming that he never assumed responsibility or that he was unaware of the liability would not be a defense. However, a socheir’s liability results from his agreement to be responsible as a socheir. Therefore, claiming that he never assumed responsibility is a valid defense.
Thus, Reuven claims that he is not responsible for having borrowed the car based on the following reasoning:
1. He is not a sho’eil, but a socheir, since Yaakov received benefit from the “loan.”
2. As a socheir he can claim that he never accepted responsibility for the value of the car because he assumed that insurance was covering the financial liability.
WHAT ABOUT A MAZIK, SOMEONE WHO DAMAGED SOMEONE ELSE’S PROPERTY?
Reuven has successfully demonstrated that he is not obligated to pay as a borrower. However, this does not exonerate him from Yaakov’s claim that he damaged the vehicle. His defense against this claim was that Shimon caused the accident. Is this claim a sufficient defense? Moreover, is it Yaakov’s responsibility to prove who caused the accident in order to collect the damages from Reuven?
First we must clarify two shaylos:
1. If someone damaged property in a traffic accident, is he considered a mazik who must pay for damages?
2. When two parties are involved in a collision, how do we assign financial responsibility?
The following incident that happened over seven hundred years ago resolves one of our questions.
ACT III – SOME HORSEPLAY
Location: Thirteenth Century Germany
The Rosh (quoted by Tur, Choshen Mishpat 378:9) discusses the following din Torah:
During a wedding celebration, the groom was riding a very expensive mule that he had rented from a non-Jew for the occasion. (This was the thirteenth-century equivalent to renting a white Cadillac for a newlywed couple.) One of his well-wishers galloped up the street on horseback, unintentionally crashing his horse into the groom’s mule. Baruch Hashem, the groom emerged unscathed from the collision, but the mule suffered severe damage. Under civil law, the groom, as renter of the mule, was obligated to pay not only damages but also a sizable penalty. Must the reckless rider compensate the groom for the damages and the penalties?
The horse rider refused to pay, contending that he was exempt from damages since he was riding on a public thoroughfare. Furthermore, he had not done the damage; the horse was responsible. He claimed that this case is comparable to that of an animal that tramples on property while walking through a public area. In that instance, the halacha does not obligate the owner of the animal to pay if his animal tramples property left in a public area.
The Rosh ruled that there is a difference between an animal walking and a rider galloping on a horse. In the latter case, the rider himself is the damaging party, and the horse is the “tool” with which the rider damaged. A person is required to use a public thoroughfare in a responsible way, and galloping on a horse when other people are nearby is irresponsible. Since the rider acted irresponsibly, he must pay damages. (For reasons beyond the scope of this article, the Rosh absolved the rider from paying for the penalties that the groom incurred.)
When two cars collide, who is responsible for the damage?
Based on the above ruling, any damage performed by an automobile is considered damage performed by its driver, and the automobile is considered his tool. However, this does not tell us how we determine which driver is responsible, and for how much damage.
For this we will have to refer to an older discussion that traces back to the time of the Gemara.
ACT IV – A COLLISION
Location: Bavel, Seventeen Hundred Years Ago
The Gemara (Bava Kamma 32a; 48a) and the poskim discuss at length the case of two people colliding into one another on a city street, both of whom sustain injuries. Who is responsible to pay for the damages?
We will simplify a very complicated discussion by providing some general rules that apply to our case:
If one party acted responsibly and the other acted irresponsibly, and the two parties collided, the party who acted irresponsibly is liable for damages. Thus, if one person is running through the street and the other is walking, and the two people collide, the running person is liable since that is considered acting irresponsibly. (There is an exception. The halacha acknowledges that someone is permitted to run through the streets late Friday afternoon to get his Shabbos jobs done. This running is not considered irresponsible.)
If both parties acted irresponsibly, the poskim dispute how we determine liability. Rashi (Bava Kamma 48b s.v. chayovin) rules that when the two parties collided into one another, each person is liable for the damage he did. Thus if Levi and Yehudah collide, Levi is responsible for Yehudah’s injuries and Yehudah for Levi’s.
Tosafos (Bava Kamma s.v. shnayim) disagrees, contending that in a case where both parties acted irresponsibly and the damage was accidental, neither party must pay for damages, since the damaged party also acted negligently. However, if someone injured or damaged intentionally he must pay even if the other party was negligent.
How do we paskin?
The Shulchan Aruch (378:7) rules like Rashi whereas the Rama (421:8) rules like Tosafos.
Let us now apply the rules just mentioned to our case. By his own admission, Reuven made an illegal turn, which certainly qualifies as negligent driving. Thus, even if we accept Reuven’s claim that Shimon was speeding, it is still a case of both drivers acting irresponsibly. According to Rashi’s opinion, this would still make Reuven responsible for the damages to Shimon’s vehicle. In addition, Reuven would be responsible for the damage to the car he was driving since he acted negligently. Reuven is claiming that Shimon should be responsible for those damages, a claim that he cannot substantiate.
According to Tosafos, Reuven is claiming that both parties contributed to the damage and that therefore he is not liable for the damages to Shimon’s vehicle. However, he would certainly be liable for the damages that happened to the car that he was driving.
This is all assuming that we accept Reuven’s contention that Shimon was speeding. However, Reuven cannot prove that Shimon was speeding, and Shimon denies it. Since we know that Reuven made an illegal turn, the beis din ruled that Reuven acted negligently and is liable for the damage to both cars. Since there is no proof that Shimon was negligent, we cannot make any claim against him.
ACT V – EPILOGUE
Reuven was understandably disappointed with the beis din’s decision. However, as a G-d fearing Jew, he knows that he is bound by their psak. Thankfully, there was only property damage involved and he did not inadvertently suffer or cause any bodily harm. He now davens for Hashem’s help that he continues his driving career with no further incidents or accidents.