Obligation of a Sho'el and Ownership

The previous lecture discussed the nature of a sho’el’s obligation to provide compensation for a borrowed item if it is accidentally damaged.  Is this expanded coverage merely the product of the sho’el’s self-obligation in recognition of the unlimited utility he has received? Or does the sho’el achieve a quasi-owner status and absorb the loss, just as a true owner would in the case of accidental loss? We identified several Rishonim who invoked the partial owner status of a sho’el as the source of his obligations. 

This question may impact several interesting halakhot which govern a sho’el.  One question surrounds the manner in which a sho’el arrangement is launched. From what point onward is a sho’el obligated to cover payments?  This question was already addressed by the Amoraim, and three distinct positions were asserted, two of which will be analyzed. 

Based on a mishna in Bava Metzia (98b), Rav depicts a situation in which a sho’el requests that the owner dispatch his animal to the reshut of a sho'el under supervision of a child. Whether or not the animal actually arrives, Rav claims that the sho’el assumes responsibility for the animal as soon as it is sent by the owner upon the request of the sho’el.  This payment arrangement may suggest that a sho’el must pay independent of any partial ownership status; it would be difficult to imagine him achieving such status before he actually takes control of the item and accepts it into his possession.  If Rav is willing to obligate the sho’el from an earlier stage, it may indicate that the sho’el’s obligations are unrelated to his status as owner, if that status exists at all.

Tosafot sense the challenge of obligating a sho’el prior to his receiving actual possession of the item.  Tosafot provide two answers. In the first solution, Rav’s halakha only applies if the animal exited the owners reshut DIRECTLY INTO A LEGAL ZONE OF THE SHO’EL.  Only in an instance in which a sho’el actually performs a kinyan do his obligations begin.  This adjustment of Rav’s chiddush may be an attempt to link the sho’el’s obligations to his partial ownership status. 

However, in their final answer, Tosafot claim that even if the animal were to exit directly into a public domain, in which case the sho’el cannot and has not performed an act of kinyan, the sho’el is still obligated to render payment. Taking Rav literally may be based on severing the sho’el’s payment obligations from any ownership status. 

The gemara subsequently cites a dissenting opinion. R. Elazar claims that just as the Chakhamim established the concept of kinyan meshikhah to transfer legal ownership of portable items, they similarly instituted meshikha to affect the start of a sho’el arrangement.  Meshikha, physically moving an item into private property, is the selected manner to perform a kinyan act upon most portable items.  R. Elazar appears to claim that the sho’el’s obligations only begin once he has executed an act of meshikha.  If accepted at face value, this may affirm that to be obligated to pay, a sho’el must first perform an act of kinyan similar to the act that a purchaser performs.  Not all Rishonim accepted the simple reading of R. Elazar’s statement, however. For example, Tosafot (Bava Metzia 99a) claim that even according to R. Elazar, a sho’el’s payment obligations begin well before he executes an act of meshikha.  The meshikha is only necessary to prevent the owner from revoking the terms of the agreement.  Tosafot were unwilling to take R. Elazar’s statement at face value because this reading would highlight the role of the owner status in obligating the sho’el. 

Another fascinating question surrounds the possibility that a sho’el might be obligated to pay even though he didn’t formally reach an agreement with the owner.  If the sho’el’s obligation stems from his agreement to pay, it would be difficult to obligate him in the absence of such formal negotiations.  However, if the sho’el’s responsibilities are driven by his use of the item, a situation may arise in which the sho’el benefits EVEN WITHOUT FORMAL AGREEMENT and he would still be obligated to pay.  The gemara in Ketuvot (34b) describes a person who borrowed an item as a formal sho’el and subsequently died.  Since he had secured utility of the item for a specific term, his children may continue using the item even after their father’s death.  The Rashba claims that although they may continue benefiting, they are not obligated to pay because they never agreed to terms with the original owner.  In contrast, the Ra’avad maintains that the children must compensate the owner for any losses, even if they continue using the item.  The Ra’avad thus introduces a scenario of a sho’el obligated to pay despite never having agreed to terms with the owner. 

Interestingly, the Rambam (Hilkhot She’eilah U-Pikadon 2:11) describes a similar scenario.  He discusses a woman who borrows an item and subsequently marries.  If she informs her husband of the nature of the borrowed item and he continues to utilize it, he can be obligated in sho’el payments – once again, even though he never agreed to terms with the original owner.  What makes this instance fascinating is that the Ra’avad disagrees with the Rambam, making his statements about the obligations of the orphans of a sho’el that much more interesting.

In any event, the prospect of a sho’el who has not formally agreed to terms but is obligated based purely upon his utility of the item may reflect the fact that a sho’el’s obligations are based upon his quasi-owner status.  If he utilizes an item without permission, he is branded a ganav and must abide by the payment details of a thief.  Typically, he must negotiate with the owner to achieve the right of utility.  However, his payment obligations do not stem for that agreement.  Once he agrees to borrow and has been granted utility, his obligations stem directly from that utility and the partial owner status which it confers.  The situations described by the gemara in Ketuvot and the Rambam describe cases in which a person enjoys legal utility without any formal authorization.  Obligating these individuals to pay as a sho’el would confirms that the sho’el payments stem from legal utility and not from any specific agreement to pay. 

It is intriguing to consider a reverse situation.  What would happen if a sho’el agreed to payment responsibilities but the type of utility he derives is not the type which would brand him an “owner”?  What happens if a sho’el borrows an item to use in a non-conventional fashion?  The gemara in Bava Metzia (96a) discusses a sho’el who borrowed an item for bestiality purposes and one who borrowed an animal to appear wealthy, without intention to actually work with the item.  The terms of the gemara’s question in this regard are unclear.  Is the concern the non-conventional nature of the benefit or the fact that it doesn’t involve direct work and labor with the borrowed item?  Either way, the gemara’s question is surprising.  Why would the type of benefit received by the sho’el interest us at all?  The benefit is merely the “trigger” that causes the sho’el to personally obligate himself to cover losses.  As long as he accepts the arrangement, he should be obligated, regardless of the type of benefit! 

Evidently, the gemara believed that a sho’el’s obligations stem from his status as partial owner; the utility he receives brands him a partial owner and forces him to absorb even accidental losses.  Perhaps atypical uses that don’t directly employ the item for labor do not brand him as owner.  Although he receives benefits, in the absence of quasi-owner status, he may not be obligated to pay.