I lent my car to a friend for the weekend. On Monday morning at about eight-thirty my friend called to let me know that he had returned the car at about eleven at night by parking it on the street near my house. When I went down at nine o’clock to use my car, I noticed that he parked the car on a block where, starting at 6 AM, one has to pay for parking and the car had been ticketed. Is my friend liable for the fine that I received?
The first question we must address is who was responsible for the car at the time it was ticketed.
When one borrows an object he assumes the legal status of a sho’eil, one of the four types of shomrim-watchmen. Even if the borrower does not formally accept liability, the Torah imposes it upon him even in the case that the borrowed object sustained damage that the sho’eil could not prevent. For example, the Torah writes (Shemos 22, 13) that if one borrows an animal and the animal dies, the borrower is liable, even if it just died from natural causes and there was nothing he could have done to prevent the animal’s death.
In order to end his responsibility the borrower must legally return the borrowed object to its owner. Thus, we must determine whether by parking the car where he did, your friend returned the car to you, from a halachic perspective.
There are two reasons that your friend retained the legal status of a sho’eil until you drove the car in the morning. The first is that the Gemoro states clearly (BK 57A) that when a shomeir returns an object to the owner he must inform the owner of its return. The only exception that the Torah makes is for one who finds a lost object. Even though the finder automatically assumes the status of a watchman, nevertheless, he can terminate this status by returning the lost object to a safe place that belongs to its owner, if the owner is destined to notice the return of his lost object before there is any danger that the object will be stolen or lost.
Since your friend failed to inform you that he returned your car, and the two of you did not set up a specific time that he would return the car, your friend did not exit his status as a watchman over your car when he parked it at night. The earliest he could be considered as having returned the car is at eight-thirty, when he informed you of the car’s whereabouts
The second reason is that when one returns an object he must give it to its owner or to the owner’s agent. According to many, (See Ramo 340, 8) even if one gives it to the owner’s wife it is not considered as if it was returned. The only reason that returning the car to a place on the street near the owner’s house and informing the owner is normally a valid return is because the owner agrees to consider this an act of return since that is where he himself keeps his car. (See Mishpetei Hachoshen page 467-8 for a discussion of this issue. If the owner normally parks in a garage then leaving it on the street is not valid unless it is explicitly agreed.)
Since your friend did not receive express permission from you to return the car to a metered parking spot, and it is not self-understood that you agreed that he could return the car to this type of spot, he did not terminate his liability at the time when he parked the car in this spot.
Thus, for two reasons the ticket that you received was received at a time when your friend was responsible for the car.
However, even though the ticket was received at a time when your friend was responsible for the car, the police fined you (as the owner) and not your friend. Therefore, we must determine whether the fact that your friend was responsible for the car suffices to require your friend to reimburse you for the loss you suffered in having to pay for a ticket that you received because of your friend’s action.
A first conjecture is that perhaps this is included in your friend’s responsibility as a sho’eil. However, this is not correct because the responsibility of a sho’eil is only for damage sustained by the car. If the car was damaged or stolen at that time, your friend would certainly be liable. However, in this situation the one who sustained a fine is you, and the Torah never made a sho’eil directly liable for losses sustained by the borrowed object’s owner.
The next possibility to consider is that perhaps this is a causative damage that falls into the category known as garmi, for which your friend is liable – not as a sho’eil but as a mazik. In fact, according to many opinions, your friend’s action is classified as garmi. Those who maintain that it is not garmi classify it as gromo. So your friend is considered a mazik, either as garmi, which is collectible in beis din, or gromo, which is not collectible in beis din.
When the Rosh (BK 9, 13) gives guidelines to determine whether a causative damage falls into the category of garmi or gromo, one of his conditions for being considered garmi is that the damage must have been an inevitable result of the damager’s actions. Since the act of your friend that we wish to consider a causative act of damage is his parking your car in a metered spot, and it was by no means certain at the time that he parked it that your car would be ticketed, it seems that according to the Rosh you cannot require your friend to reimburse you on the grounds of garmi.
However, in general, applying this criterion of the Rosh is very difficult since no one knows the exact conditions which determine that the result is considered “inevitable.” For example, the Maharit (1, 98) was inclined at first to rule that if the probability is greater than fifty percent that the result would occur, then we consider that result inevitable. However, he backed away from this stance because of the rule that the majority is not a determinant in monetary law (Ein holchin bemomom achar horov).
An interesting case that illustrates this difficulty is a ruling of the Terumas Hadeshen (1, 315) that if a person points out to a Jewish thief a tunnel that leads into A’s house, he is not liable even if the thief then stole from A, since it was not certain that the Jewish thief will steal since he may repent his evil ways. The Sho’eil Umeishiv (2, 4, 180) vehemently objected to this ruling since he felt that the likelihood was sufficiently great that the thief would steal to make it “inevitable.”
We should note further that Tosafos (BB 22B), who give criteria that are quite similar to the Rosh, omit the condition that the damage must be certain. Furthermore, there are many Rishonim who don’t give any such criteria at all.
Additionally, the Chasam Sofer (res. CM 140) maintains that a shomeir is liable for causative damages. However, it is difficult to force someone to pay based on this Chasam Sofer since many, including the Nesivos (58, 2), deflect the Chasam Sofer’s proof and disagree with his ruling.
Therefore, it is difficult for beis din to force your friend to pay you on the grounds of garmi. However he would nonetheless be well-advised to pay since 1] according to many poskim it is garmi, and moreover 2] even those who maintain that it is not garmi do consider it gromo for which one is chayav bedinei shomayim-liable in the heavenly court.
However, we will examine in the sequel two other reasons that your friend may have to pay.