Question

I recently flew from the U.S. to Israel. A friend in Israel asked me to bring back a stroller he had in the U.S., and he offered to let me use the stroller while in transit, which I accepted. When I arrived in Israel and  retrieved the stroller, I noticed that there was a tear in its material which wasn’t there when I checked it in. I filed a complaint with the airline, but they were not responsive. My friend says that I am responsible because I had the halachic status of a sho’eil since I used his stroller and a sho’eil is liable even for damages which are beyond his control. Am I liable?

Answer

For a number of reasons you are not liable.

The first flaw with your friend’s claim is that he misclassified your halachic status. You were not a sho’eil. The Gemara (Bava Metsiyo 94B) says the main characteristic of a sho’eil is that kol hano’o shelo, i.e. the only one who benefited was the sho’eil. The Gemoro subsequently clarifies that it suffices if the borrower is the main beneficiary. It is obvious that in your case the main beneficiary of the stroller being in your care is your friend since you were doing him the bigger favor in bringing it along with you from overseas. People don’t look for someone who needs to bring a stroller to Israel in order to use the stroller. Rather, people who need to bring a stroller to Israel look for someone who will do so for them.

Moreover, had you not been able to use the stroller you would clearly have the status of a shomeir chinom-one who watches for free. But since you could use the stroller your status was only a shomeir sochor, and a shomeir sochor is not liable for damages that were beyond his control. Even had you not been doing him a favor at the time when you did not use the object, since you start out as a shomeir chinom you would only have the status of a shomeir sochor if you start using it. This reason is that Tosafos (Bava Metsiyo 29A) and the Sema (267, 38) and many others rule that someone who is a shomeir chinom only becomes a shomeir sochor – and not a sho’eil – if he has use of the object.

The second flaw is that since the damage took place while the stroller was checked-in you were not a shomeir at all. Normally, (C.M. 291, 26) one who is a shomeir is not allowed to pass the object on to another person, and if he does he retains liability. However, in case the person to whom he gives it to is approved by the owner, he may pass it on and thus avoid any future liability. The Gemoro (Bava Metsiyo 36A) states further that even if the owner didn’t specifically grant permission but sometimes he himself uses the second shomeir, it is sufficient to enable the shomeir to pass responsibility to the second individual and the shomeir is free from responsibility. Therefore, certainly in your situation, where you were supposed to check the stroller in, you are not responsible for damages that were incurred while it was in the airline’s custody.

However, concerning this argument there remains an issue that needs clarification. In general, in cases where a shomeir is permitted to pass custody to another, there is a dispute whether he becomes responsible for the second individual, i.e. in case the second person doesn’t pay the original shomeir must pay. This is very important in your situation because even though you aren’t responsible for damages which were beyond your control since you weren’t a sho’eil as we pointed out, nevertheless, if you are secondarily responsible for what happened while the stroller was in the airline’s custody you would be liable, because the airline probably was negligent for which the airline is liable, and if you are responsible for the airline you would have to pay if they don’t pay. However, whether one is indeed secondarily responsible is a major dispute. Some opinions like the Shach (72, 134) maintain that it is a dispute between Rabbeinu Tam who maintains that he is liable and the Rambam who maintains he is not liable. Others like the Sema (72, 96) maintain that all agree that the first individual is secondarily liable. But the Maharshal (Bava Kama 1, 32) maintains that all agree that he is not liable. Since the matter is a dispute you do not have to pay.

Furthermore, your case is better than the case these poskim discuss, because the decision to check it in was not yours. Therefore, it is likely that all would agree that you are not liable because the reason Rabbeinu Tam (See Tosafos Bava Metsiyo 42B) ruled that in many cases the first shomeir is secondarily responsible is that otherwise people will pass the object on to another person in order to avoid liability, which does not apply in your case.

The third reason that you are not liable is that even if we were to concede that overall you had the status of a sho’eil, and furthermore, that even at the time when it was checked-in you were classified as a sho’eil, there is an important opinion that maintains that you are not liable. The reason is that even though a sho’eil is responsible for events beyond his control, he is not liable for something that is meiso machmas melocho-damages that result from normal use of the borrowed object. Thus, for example, if one borrows a vacuum cleaner he is not liable if it broke while being used to clean since he had the owner’s consent to use it in this manner.

The Rishonim dispute whether damages that didn’t result from the actual use of the borrowed object but resulted from the transit of the borrowed object to the place where it was supposed to be used are also classified as meiso machmas melocho. The Rama (See Yad Rama on Bava Basro 88A and Tur siman 340) maintains that even if it was damaged as a result of its transit it is meiso machmas melocho and the borrower is not liable. Therefore, he maintains that even if you were a sho’eil while the stroller was checked-in, you would not be liable. It is important to note that the Shulchan Aruch (C.M. 340, 3) rules like this opinion. Even though there are several Rishonim and Acharonim (see Ramo ibid and Shach note 5) who rule against the Shulchan Aruch, nevertheless beis din cannot make you pay since you may rely on the Rama and not pay.

 

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