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Naso-Got a Flat Tire while doing a Favor to the Car’s Owner-Part Two



Summary of last week’s question:

You borrowed the car of your neighbor who asked you and several others to daven at kivrei tsaddikim on behalf of his sick brother-in-law. On your way back, you punctured the tire by driving over a screw. You had the tire repaired and asked if you had to pay for the repair and whether now that you paid, if you are entitled to reimbursement.


In the previous article we learned that there are two reasons why you were not a halachic shoeil on the car that you borrowed. We saw that each of these reasons would have sufficed by itself to free you from paying for the repair of the flat you caused by driving over the screw that was lying on the highway. Furthermore, we saw that based on one reason you are even entitled to a refund for the money you paid.

In this article we will learn that even if you had been classified as a halachic shoeil there is a reason why you did not have to pay and, according to many, you are entitled to reimbursement based on this reason as well.

This reason is based on the halachos of shoeil. We learned that a shoeil is even liable for damages that result from things that happen for which he is blameless. Thus, it might seem that he is liable for anything that happens to an object that he borrowed. However, there is a class of damages for which even he is not liable. These are damages that result from normal use of the borrowed object known in the Gemoro as meiso machmas melocho. An example of this is if one borrowed an animal to plow his field and while plowing the animal dropped dead because he wasn’t healthy enough to plow the field. In this article we will discuss the reason for this exception and subsequently derive precisely which situations are included in this category.

We find among the Rishonim several opinions for the reason for this leniency. The Ramban (Bava Metsiyo 96B) says that the reason for this exception is because the owner is the one who is at fault for the damage. In the above example, he is responsible for the animal’s death since he should not have lent his animal for plowing the field if it was not suited for the task. The Rashbo (ibid) offers a different reason, namely that we understand that when an owner lends his object to perform a given task he is waiving his right (mocheil)  to collect for damages that result from normal usage of the borrowed object.

The Gemoro (97A) rules that one is not liable if he borrowed a cat in order to get rid of mice and the cat died because it ate too many mice since that is classified meiso machmas melocho. The Ramah (cited by the Tur CM 340 and also in the Ramah’s commentary to Bava Basra 88A, #121) derives from this ruling that if one borrowed an animal to perform a task and it is known that in order to perform the task the animal would need to travel to its job and in the course of its journey the animal was stolen, the borrower is not liable since that is also classified as meiso machmas melocho. Even though traveling was only incidental, since it was not the task that it was borrowed to perform, nevertheless, since it was necessary in order to be able to perform its job, damages that result from the journey are still classified as meiso machmas melocho. The Bach and Prisho explain that the derivation from the case of the cat is because the cat was not borrowed to eat the mice but to get rid of them, which could have been accomplished without the cat actually eating the mice. Nonetheless, eating the mice was an action which led to the ultimate goal of eradicating the mice.

The Tur, after citing the Ramah, continues that his father the Rosh, disagreed and maintained that incidental damage cannot be classified as meiso machmas melocho since it is not what the animal was borrowed for. Later Poskim are divided on the question of which opinion is authoritative. The Beis Yosef, and subsequently the Shulchan Aruch (340, 3), rules like the Ramah and claims that even the Rosh agrees with the Ramah. However the Ramo, Shach (340, 5) and many others rule against the Ramah.

The argument of the Shach is important. He claims that the previously cited Ramban disagrees with the Ramah since one cannot blame the owner for the theft that ensued from the loan. If the owner lent his animal, in spite of its poor physical condition, then he is blameworthy. However, he cannot be blamed for burglars and pirates since those losses have nothing to do with the animal’s physical condition.

At first glance it would seem that whether the damages that you caused are classified as meiso machmas melocho depends on the dispute between the Ramah and the Rosh. However, there are two reasons why it may not. There is one reason why both would agree that it is not meiso machmas melocho and one why all may agree that it is meiso machmas melocho.

The reason why all may agree that it is not meiso machmas melocho is because of a question that was raised by the Kava Dekashaiso. He (question 39) asks that it would seem that there is proof from the Gemoro (Niddo 58A) against the Ramah. The proof is from the fact that Gemara rules that if a lady borrowed a garment and stained the garment due to her menstrual bleeding she is liable for the cleaning bill. It would seem that according to the Ramah this should be classified as meiso machmas melocho since it is an incidental expense that resulted from the major purpose of the loan, wearing the garment.

Rav Wosner and others (cited in the notes found in the Kava Dekashaiso that was published by Gal-Ed) answered that since the woman who borrowed could have prevented the stain, even the Ramah agrees that she should be liable. This answer does not affect your question since you could not have prevented the flat tire.

However, Rav Naftoli Nussbaum (cited in Machane Yisroel res. 63) gives an answer that may pertain to your question. He answers that the Ramah only classified incidental damages as meiso machmas melocho if they are not repairable but for any incidental damage that is repairable even the Ramah agrees that the borrower must pay the cost of the repair. Based on this novel idea, Rav Nussbaum ruled that one who punctured boots that he borrowed, by walking over a nail is liable for the repair, but if the boots could not be repaired he was not liable. If one follows this approach, the Ramah would agree that in your case you were liable for repairing the flat (if we ignore the considerations from last week’s article). However, it would seem that this is a weak opinion since there are other good answers to this question and also the Ramah and all those who previously cited the Ramah did not differentiate between damages that could or could not be fixed.

However, there is a reason for arguing that even the Rosh would agree to classify your damages as meiso machmas melocho. The reason is that in your case travel on the road was not incidental. In the case of the animal, the purpose for borrowing the animal was to plow and its travel on the road was only incidental. It was necessary only to get to the work. However, you borrowed the car for the purpose of traveling on the road. That was the one and only purpose. It is true that you only traveled the road in order to daven but the car was not needed to daven. It was borrowed specifically in order to drive over the road. Therefore, it would seem that even the Rosh would agree that this is meiso machmas melocho and you could even ask for a refund of the money you spent repairing the flat.

The only reason to question this ruling is because it would seem that the Ramban would not agree that this is meiso machmas melocho since one cannot fault the owner for the flat and the Ramban explained that the reason to free the borrower from liability in case of meiso machmas melocho is the owner’s fault. However, we should note that the (previously cited) Rashba would agree that this is meiso machmas melocho because he maintains that the owner forgave any claim for damages that result from normal usage, a classification that fits your situation.

In summary, we have seen that the Ramah would certainly classify your damages as meiso machmas melocho and the Rashba likely would agree and there is no reason to believe that the Rosh would disagree. The Shulchan Aruch would certainly agree that it is meiso machmas melocho and we must now consider how the later poskim would rule on this issue.

Even in the case of the Ramah where travel is incidental many, including the Maharshdam (CM 435), maintain that one cannot make the borrower pay since the Ramah and Shulchan Aruch maintain that he is not liable. Moreover, in your situation where the car was borrowed for the trip, where the Rashbo would agree with the Ramah and very possibly the Rosh would also agree, certainly you would not have needed to pay for the repair. That is the ruling of modern poskim such as Minchas Yitzchak (2, 88) and Mishpat Shlomo (3, 19). The Chasam Sofer (res CM 52) and Minchas Yitzchok would seem to maintain that even if you paid you could force the owner to reimburse you but that is not certain.

In conclusion: There certainly is a third reason why you did not have to pay for the repair and very likely we have a second reason why you can claim reimbursement.






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