Borrower in a Bind

Boruch had spent Pesach in Eretz Yisrael, including a relaxing Shabbos there afterwards. Before he traveled, his chavrusa, Avrumi, had approached him with a request.

“You’ll be away the whole Yom Tov,” Avrumi began. “Would you consider renting me your car? I'll be spending Pesach with my parents and in-laws, who live out-of-town.”

Boruch considered it briefly. “That’s fine,” he said. “How long do you need the car?”

“Ten days – from Wednesday, Erev Pesach, through Friday, Isru Chag,” answered Avrumi. “We plan to return for Shabbos.”

“I think $500 for all of Pesach is fair,” Boruch said. Avrumi gratefully agreed.

Avrumi traveled comfortably between cities, visiting family and making the most of Pesach.

On Friday morning, Isru Chag, Avrumi began loading the car. Suddenly, one of his children had an accident and was injured. Avrumi rushed him to the nearest emergency room.

Tests, consultations with doctors, and anxious waiting continued for hours. Thank G-d, it turned out that there was nothing seriously wrong, but it was now too late for the family to make it home for Shabbos.

Avrumi and his family stayed where they were for Shabbos. Only on Sunday evening did they finally return, stopping along the way to visit another relative.

“I wasn’t able to make it home for Shabbos,” Avrumi told Boruch when he returned from Israel. “I had to take my child to the ER. I’ll pay you $100 for the additional two days.”

Boruch hesitated. “But you were delayed by oness – circumstances beyond your control,” he said. “I’m not sure you’re liable.”

They decided to ask Rabbi Dayan:

“Is Avrumi liable for the extra two days?”

“The Rosh (Responsum 92:3), cited by Shulchan Aruch, addressed a similar case,” replied Rabbi Dayan. “Someone hired an animal for a two-day round-trip journey, but the river that he had to cross returning home flooded and delayed him an additional day (C.M. 310:3).

“The Rosh ruled that if the rental was defined per diem, oness is irrelevant; the payment is for each day that the renter holds the animal.

However, if the rental was defined for the round-trip to that specific place – or even for a set time with a specified destination known to require that duration – the claim of oness is relevant, following the general rules of oness for sechirus (see C.M. 334:1).

Accordingly, if it was uncommon for the river to rise, so that neither party had reason to anticipate this possibility, or conversely, if it was common and both parties were aware of the risk, the loss is borne by the owner, since the renter is in possession of his money. The owner must stipulate beforehand if he wants the renter to pay for oness.

If the likelihood of delay was known primarily to the renter, though, he is liable for the extra day, since in that case he should have stipulated to be exempt.

The Acharonim address related cases in which the renter was delayed due to imprisonment or illness. Chavos Yair (#151) and Ketzos (310:1) apply the rules of oness here as well (Pischei Teshuva 310:1).

However, Shevus Yaakov (1:176) and Nesivos (310:9) differentiate a case where the oness applies to the person, not the rented item. For example, if the renter fell ill, but could have returned the animal with someone else, he remains liable for the additional time.

Furthermore, when the rental was defined for a fixed duration (but not per diem), Chavos Yair (#151) and Ketzos (ibid.) maintain that the renter is not liable when delayed by oness if he derived no actual benefit during the delay, since the rental ended, whereas Nesivos (310:8) seemingly maintains that if no destination was specified, the renter retains the potential right to continue using the item, so that he is liable for the delay (Pischei Choshen, Sechirus 2:22-24[43]).

Nonetheless, all agree that if the renter continued to benefit from the item during the delay, he is liable, even when delayed through oness (Chavos Yair #151; Noda B’Yehuda 2:56-57).

“Therefore, in our case,” concluded Rabbi Dayan, “although the rental was not per diem, Avrumi is liable for the additional days for a number of possible reasons. First, he continued using the car during the delay; second, the oness affected him, not the car; and third, the agreement was for a set number of days, without a specified destination.”

Verdict: When a renter was delayed in returning the rented item due to oness, whether he is liable for the extra days depends on numerous factors: the nature of the rental agreement, the nature of the oness, and whether he continued using the item during the delay.