Question
I own a spare car which I rent out regularly for short terms. Recently, I rented the car to someone (not on Purim) for three days. The renter drove the car while he was under the influence of alcohol. As a result, he got into an accident, which damaged the car, and he also committed traffic violations. (He drove through a “Do not enter” sign.) He was eventually caught by the police and since he tested positive for being under the influence of alcohol, the police impounded the vehicle. It took a week until the police finally released the vehicle. I told him he has to pay for the extra week but he replied that the extra week was not part of the rental period and he did not use the car while it was impounded and therefore, he does not have to pay. Is he correct?
Answer
We should first note that the fact that the vehicle was not returned on time was a result of the driver’s negligence and was not due to circumstances that were beyond the renter’s control.
The second point we should note is that there are two possible reasons why the renter may be liable for the additional week. One possibility is that the rental continued until the car was returned physically to you. The second is that perhaps he is liable for having caused you, the owner a loss of income. We will examine each of these possibilities.
The Noda Biyehuda (res. CM 2, 56) asks that there seems to be a contradiction between two rulings of the Shulchan Aruch. In one place (307, 6) the Shulchan Aruch discusses a person who rented an animal and, due to the renter’s carelessness, the animal suffered a wound which prevented the owner from renting it to others even after the animal was returned. The Shulchan Aruch records a dispute if the renter is liable for the owner’s lost income and the Rama rules that he is not liable. In another place (310, 3) the Shulchan Aruch discusses one who rented an animal for two days but due to a rise in the water level of a river, which the animal needed to traverse, it took an extra day. The Shulchan Aruch rules that if the renter should have known that this was a frequent occurrence and the owner was unaware, the renter is liable for the extra day since he should have taken this possibility into account originally.
The Noda Biyehuda answers that the critical difference is that in the case where the animal suffered a wound the animal was returned to its owner at the end of the original rental period. Therefore, the renter was not liable to pay rent for any additional period. While it is true that the owner suffered a loss of income, nonetheless, the rental ceased with the return of the wounded animal. However, in the case where the river became impassable the renter kept the animal for additional days. Since the renter was to blame for the delay he must continue paying rent for the additional days.
The rule that we can derive from the Noda Biyehuda is that the critical factor which determines when the rental period ends, in case the renter is to blame, is the rental’s physical return. According to this approach, your renter is liable for the additional week since due to his illegal driving, he did not return the car until it was released by the police.
We should note that many poskim including the Nachalas Tzvi (312, 7) and Aruch Hashulchan (307, 11) cite and totally agree with the Noda Biyehuda.
Let us consider the second possibility, that your renter is liable for your loss of income. We should first note that the damages are causative (grama). There are two reasons why your renter would not be liable for these causative damages. The first is that only when the actions of the one who caused the damage can be classified as garmi is the one who damaged liable for the damages. In your case the actions of your renter did not directly prevent the car from being used. They only caused the police to impound the car and the actions of the police are what ultimately prevented you from renting the car to others. Therefore, as far as damages are concerned, the renter’s action is called garmi degarmi-a double garmi .There is a dispute among the Rishonim whether one is liable for garmi degarmi. The Shach (386, 3) decides that one is not liable. Therefore, if we do not rule like the Noda Biyehuda that the rental continues, your client would not be liable for your loss of income.
A second reason why the renter would not be liable for damages based upon your loss of income is that there is a major dispute among the Rishonim if one is ever liable, even if he acted directly to prevent someone from using his property in order to earn income. The property that the Rishonim dispute is an animal. This matter was first disputed by the Rishonim including the Ba’alei Hatosfos (See Tosafos Gittin 42B) who disagreed over this issue. Later poskim also disagree on this matter with, for example, the Ramo (307, 6) ruling that he is not liable but the Maharshal (Bava Kama 8, 22) ruling that he is liable.
Furthermore, there is a follow-up dispute among those who maintain that the one who prevented the animal from working is liable, over what the nature of the liability is. Many, including the Maharshal (ibid), Shevus Ya’acov (3, 178) and Chazon Ish (Bava Kama 13, 2), maintain that the liability is for the loss in the animal’s value due to its incapacity. If one follows this school then in your case, since impounding your car for a week did not lower the car’s value, the renter would not be liable for the lost income.
It is only according to those like the Nesivos (340, 3) and Machane Efraim (Sechirus 20) who maintain that one is liable for the lost income that one could maintain that your renter is liable. However, even this opinion would agree that in your situation where the damages are, as we mentioned earlier, only garmi degarmi your renter is not liable for the damages you suffered from lost income.
Thus we have established that the only reason why your renter is liable is because we consider his rental to have extended beyond the original date of termination.
There is one further issue which affects the amount the renter has to pay you for the extra days. The approach of the Noda Biyehuda is that the extra days are an extension of the original agreement. Thus, even though the original agreement was for three days, in the end the rental was for a week and three days. According to this view he must pay the rate you charge for a week and three days. However, there are others (See Res. of Rav Malkiyo) who, while they agree with the Noda Biyehuda that the extra days are considered as a rental, do not agree that the original rental is extended. The say that there is a new rental for the extra days. They maintain that the reason this period is classified as a rental is because we surmise that this is the true desire of the renter since the alternative is that he would be classified as one who caused damage to you, the owner, which one is not allowed to do, for the days his actions caused the car to be impounded.
In conclusion: Since the car was not returned to you at the end of the rental period, the renter is liable for the entire period until the car was returned to you.
