Mr. Eisner ran a tool gemach, lending tools out for use.
People would occasionally return the tools broken. Sometimes this was due to misuse, but sometimes it was through normal use or regular wear and tear.
“I’ll repair or replace the tool,” some people offered. “I’m sorry it broke.”
“I shouldn’t have to pay,” claimed others. “I used the tool normally!”
“I’m willing to pay partially,” yet others stated. “The tool was old.”
These incidents led to discussions and sometimes arguments with the borrowers, which Mr. Eisner often found unpleasant. “You need to have a clear agreement beforehand,” Mrs. Eisner urged her husband. “Better to be upfront and cover yourself. Whoever wants to borrow is welcome to do so under those terms!”
Mr. Eisner drafted a terms-of-use agreement, in which he wrote:
- Borrower is fully responsible for damage to the tool, regardless of reason.
- Borrower must either pay for repair, when possible, or pay for replacement tool.
- Lender carries no legal liability for any damage done through use of the tool.
He showed the terms of use to his wife. “What do you think?” he asked.
“Seems fine to me,” she said. “But check whether this is halachically valid. Also, whether the borrowers have to sign on this.”
“I can have them sign,” replied Mr. Eisner. “Anyway, it’s good to have them sign to cover myself legally. Without a signed agreement, someone can always claim that I didn’t clarify the terms with them.”
Mr. Eisner arranged to meet with Rabbi Dayan. He showed him the terms-of-use agreement and asked:
“Are these terms acceptable and binding according to halacha? Do the borrowers need to sign?”
“The Gemara (B.M. 94a) teaches that a shomer (guardian) can stipulate and accept responsibility as a sho’el (borrower) who is liable even for oness (uncontrollable circumstances),” replied Rabbi Dayan. “Although the Torah provides default liabilities for guardians, it is possible to increase or decrease their liability” (C.M. 291:27; 305:4).
“According to many authorities, this is based on the principle that in most contractual monetary matters, people can agree to terms not warranted by the Torah. Rabi Yochanan maintains that a verbal stipulation suffices and the shomer does not even need a kinyan here” (see Sma 301:7).
“Regarding a borrower who accepts additional liability for meisah machmas melacha (damage ensuing from routine use), Ketzos HaChoshen (340:1) cites seemingly opposing opinions on whether a verbal stipulation suffices, since such liability does not exist elsewhere in the framework of shomrim. Due to this dispute, Ketzos rules that the borrower would be exempt unless he had made a kinyan.
“However, Nesivos (340:2) maintains that a verbal commitment suffices. He explains that any person who damages through his actions is liable. Nonetheless, the borrower is exempt from damage through routine use because of the lender’s permission to use the item in this manner, and the inherent, implicit exemption that applies if such damage occurs. However, if they stipulated that the borrower will be liable, he reverts to being like any other person who is liable for such damage.
“Aruch HaShulchan (C.M. 340:7; 291:57) rules like the Nesivos, provided that the stipulation was made when initially borrowing the item; the borrower enters the shemirah with a greater responsibility. However, if he agrees to accept the additional liability only after borrowing, he requires a kinyan.
“Nonetheless, one who damages is liable only for the current value of the item. Replacement value possibly enters the realm of asmachta – insincere or exaggerated commitment, which certainly requires a kinyan. Some maintain, though, that if the replacement value is within reason, it is not considered asmachta (see Rema, C.M. 207:13; Pischei Teshuvah, E.H. 50:9; Gray Matter, vol. 4). A signed document is likely considered kinyan situmta nowadays” (see Pischei Choshen, Kinyanim 10:[3]).
“Thus, these terms are valid,” concluded Rabbi Dayan, “but the borrowers should sign, especially if you want replacement value.”
Verdict: A borrower can accept responsibility also for meisah machmas melacha. According to most poskim, even a verbal stipulation beforehand is binding. Replacement value might require a kinyan.
