My friend has a spare car that I rent from him when I need. Since the car is ten years old and only worth about three thousand dollars, my friend doesn’t carry theft insurance for the car, a fact which I was aware of. Recently, I rented the car for two days. I live in an apartment building without private parking and so at night I parked it on the street in front of the building and made sure to lock it. When I returned in the morning the car was gone. I informed my friend who immediately notified the police, but they could not find the car. Am I liable for the loss since it was in my possession at the time of the theft?
When one rents something he is called a socheir-a renter, and his relationship with the rental is that he is a shomeir. He is not the owner but he has responsibility to watch over the rental object. The Torah discusses four situations where a person is obligated to watch over another person’s possession-called a shomer (in the plural shomerim), and specifies the laws governing the liability of three of the shomerim. While the Torah does not spell out the liability of a socheir the consensus in the Gemoro is that the laws governing the liability of a socheir are the same as one who is paid to watch an object-i.e. a shomeir sochor. The Torah writes explicitly that a shomeir sochor is liable for theft. Therefore, it would seem that you are liable for theft of the car.
However, there are several factors to consider which affect the halacha.
The first issue is whether a shomeir sochor is liable for every theft or not. We must bear in mind two important facts. The first is that while the Torah states that a shomeir sochor is liable for theft it also states that he is not liable for oness-damages to the object that result from unusual circumstances that were beyond the shomeir sochor’s control. Second, the Gemoro explicitly states that a shomeir sochor is not liable if armed bandits stole the object he was watching.
Therefore, we must examine whether a shomeir sochor (henceforth abbreviated as SS) is liable for other cases of theft that result from unusual circumstances which were beyond the paid watchman’s control i.e. a situation that can be classified as an oness. The example that is discussed by Tosafos is where a paid watchman buried the money, which he was entrusted to watch over, deep inside the ground so that in order to steal the money a burglar had to discover the burial place and then conduct an extensive digging operation
This question is the subject of a major dispute in Tosafos and numerous other Rishonim. Tosafos in one place (BM 42A) and according to many (Yam Shel Shlomo and others) the Rambam (Sechirus 1, 2), and others, rule that a SS is not liable for theft that results from an oness. However, in another place (BK 57A) Tosafos cites the Ri that a SS is liable even for theft that is an oness. This is also the opinion of the Rosh (BM 3, 21) and Tur (CM 303) and other Rishonim (including the Ramban and Rashba),
Whereas, the rationale for the lenient approach is simply because a SS is not liable for oness, the rationale for the stringent opinion is difficult and the Rishonim suggest two approaches. The Rosh and the Ramban (and his disciples) understand that the Torah requires a SS to actively watch over the object that he is paid to watch over. Thus if, for example, he was hired to watch money, it is his duty to keep the money with him at all times and he may not place it even in the most secure place. If he did hide it in a secure place and it was stolen he is liable because he was derelict in fulfilling his responsibility.
The approach of Tosafos is different. He maintains that the reason the SS is liable has nothing to do with a SS’s duty to watch the object. Rather, it is because the Torah excludes theft from the usual leniency that is granted to a SS in case of oness. In spite of the fact that a SS who placed money in a secure place carried out his responsibility, nevertheless, he is liable.
The later poskim also dispute which opinion is authoritative. For example, the Maharshal (YSS BK 6, 11) Shach (CM 303, 4) and Gro (CM 303, 4) all rule leniently.
A situation that was hotly debated about three hundred years ago in Egypt concerned a SS who was entrusted with merchandise which he placed under lock and key in his personal secure storage facility. When the SS came later to remove the merchandise he discovered that some of it was stolen, apparently by someone who forged a key and unlocked the warehouse. The Perach Shushan (CM 1, 1) ruled that the SS was liable for the loss because he followed the stringent opinion and understood their rationale in a manner similar to Tosafos: that even though the SS acted properly, nevertheless, the Torah rules that he is liable for theft. He explains that since the Torah rules that the SS is liable, when a theft that is an oness occurs it is because Hashem wanted to punish the SS and that is why he brought upon him this loss which was beyond his control (mazolo goram). It is similar to any other damage that a person suffers due to circumstances that are beyond his control e.g. a tornado blew away the roof of his house.
The question was sent to the beis din in Yerushalaim and the av beis din, the Maharam Chaviv (his responsum is printed in the Ginas Verodim CM 1, 1) ruled that the SS is not liable for many reasons, some of which apply to our case as well. First, the lenient opinion of Tosafos in BM and the fact that Rambam and also others (which we now include the Maharshal, Shach and Gro) rule leniently. Second, even the stringent opinion would agree to rule leniently in this situation since the SS acted in the customary manner. The Ginas Verodim (CM 1, 2) concurred with the lenient opinion arguing that the owner of merchandise was aware at the outset that the SS would just lock the merchandise in his storage facility. If he had wanted more security he should have paid extra for it. Thus, even if what the watchman did would not have been customary would free him from liability since he acted in accordance with the desires of the owner.
We should note first that the Shulchan Aruch in many places rules that custom overrides the rules that are written in the Gemoro. This is a basic principle that governs all monetary relationships. The Yerushalmi (BM 7, 1) phrases it “custom overrides the law.” This is ruled in the Shulchan Aruch explicitly in the case of watching objects. The Gemoro (BM 42A) rules that even one who is not paid to watch an object (i.e. a shomeir chinom) must hide money, that he is entrusted to watch over, in the ground. However, the Shulchan Aruch (291, 18) rules that one is not required to do so in a place where that is not the custom.
Second, we should note that the argument of the Ginas Verodim that the watchman is not liable since the owner was aware and tacitly agreed with the manner that his merchandise would be kept, is the ruling of many others including the Terumas Hadeshen (333) and Maharshdam (CM 134).
Returning to your question, there are a number of reasons that you are not liable: 1-you acted in the customary manner and, 2-even if it was not the custom, the owner of the car knew that you, in particular, would park the car on the street and nevertheless he entrusted you with his car and did not demand that you return the car at night.
The only opinion that maintains that you are liable is the opinion that even if a SS watched in the proper manner he is still liable, an opinion which is held by Tosafos in one place and by the Perach Shushan.
Nonetheless, both those who are lenient in all cases – which is the opinion of one Tosafos and other Rishonim and followed by the Maharshal, Shach and Gro – and those who rule that one should be stringent in case of oness because the SS was derelict in fulfilling his duties – the approach of the Rosh and Ramaban – would agree that you are not liable because you did whatever was expected of you and what is customary.
In conclusion: You do not owe anything to the owner.