Question
Since our yeshiva does not have a dormitory, we rent apartments for our students. We don’t inspect the apartments before renting them, relying on the owners to rent us good apartments. Recently, since many of our students departed, we gave up several apartments. When we returned one of the apartments, the owner noticed that the countertop and several of the drawers below the countertop were damaged. The owner asked us to pay for the damages. Are we liable since we don’t know whether the damages occurred after we rented the apartments or perhaps they were in this state when we originally received the apartments. We should note that the bochurim didn’t cook and it may very well be that they didn’t care if these items were damaged.
Answer
A similar situation is discussed in the Gemara (Niddah 58A). The Gemara’s discusses a woman who borrowed a garment and when she returned it, the owner noticed that the garment was stained. The owner of the garment claimed that she inspected the garment before she lent it out and it was clean. The Gemara discusses who must pay to remove the stain, and the Gemara rules that the owner cannot force the borrower to pay.
Tosafos and other Rishonim question the Gemara’s ruling because we have a rule that when a problem is discovered we assume that the problem started where it was discovered. The example that is discussed in the Gemara is a lady who got married and after the wedding it was discovered that she had a problem that would void her kesubo if she had this issue before she wed. The Gemara (Kesubos 76) rules that she can still collect her kesubo because we assume that the blemish occurred after she wed since that is when it was discovered, which is to say after she married her husband. Therefore, in the case of the garment with the stain, Tosafos questions why we don’t assume that the garment was stained after the garment was borrowed and thus require the borrower to pay for the cleaning.
Tosafos suggests two approaches. The first approach is that when one borrows an object, the object does not enter a new state since even after it was borrowed its ownership remains unchanged. In contrast, when one buys an object, which is the case that is discussed by the Gemara, ownership is changed. Then we don’t assume that a blemish found by the second owner, existed at the time it was owned by the previous owner. Thus, if damage is discovered after something was borrowed, we remain in doubt if it existed before it was borrowed. Since we have a doubt we cannot force the borrower to pay for cleaning.
The second approach of Tosafos is that the rule that we assume the blemish to have occurred in the place where it was discovered is not a strong enough principle on its own to require one to pay out money. This is explained further in a different Tosafos (Chulin 51A). When the issue is whether to cancel an action which already took place e.g. a marriage, then we say that if the blemish is found by the husband he can’t cancel the marriage based on the blemish, since the blemish was uncovered post-marriage. Thus, even though the result is that the husband will have to pay out money for the kesubo, we can base our decision on the rule that we assume the blemish was uncovered only post-marriage.
However, by the stain there is no action which is at issue. Rather, it is only a question of whether the borrower must pay and the principle is not strong enough to force the borrower to pay. This is the approach of the Chassam Sofer and Chazon Ish (Even Ho’ezer 82, 15)
Chochmas Betzaleil notes the fact that the Rambam and Shulchan Aruch omit the ruling of the Gemara that the borrower is not required to clean the garment. He suggests that the reason is that the Rambam and Shulchan Aruch do not accept the answers of Tosafos and understand that the ruling of the Gemara that the borrower does not have to pay for cleaning argues with the Gemara in Kesubos and therefore, the halacha does not follow this Gemara and the borrower must pay for the cleaning.
An application of this discussion is a question which was posed to the Maharsham (6, 237). He was asked to rule in a situation where Shimon borrowed an object from Reuvain. Shimon claimed that when he received the object it was already damaged but Reuvain replied that when it left his possession there was no damage. The delivery lady claimed that she delivered it exactly as she received it. The Maharsham ruled, based on the previously cited Tosafos, that we can’t make Shimon pay based on the fact that the damage was found by him since Tosafos says that the rule is not strong enough to make a borrower pay. This was also the ruling of the Maharshdam (res 449).
The Sha’ar Mishpot (72, 25) suggests a different approach to answer the question of Tosafos. He says that stains in woman’s undergarments are different from blemishes found in people because it is infrequent for there to be blemishes but it is frequent for women to stain. Since it is frequent to stain, one cannot assume that the garment was stainless when it arrived by the borrower. However, the Maharsham (ibid) rebuts the Sha’ar Mishpot. Furthermore, the Chochmas Shlomo in his commentary to the Shulchan Aruch (siman 224) rules the first answer of Tosafos.
Rav Mendel Schaffrin noted that the approach of the Sha’ar Mishpot applies frequently when a person borrows a car. If the car is returned with a scratch or missing some paint the owner will not be able to force the borrower to pay for the repair even according to the Sha’ar Mishpot since it is frequent for cars to have scratches and spots where the paint is not intact.
In conclusion: The owner cannot force you to pay for the repairs since you can rely on the approach of Tosafos since it has been followed by many later poskim. This is true even though there are poskim who disagree.
