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Mishpatim-Returned a borrowed car at night to a metered parking spot-Part 2



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 6AM, one has to pay for parking and the car had been ticketed. Is my friend liable for the fine that I received?


In the previous article we examined the issue whether the borrower had to pay the fine because he caused you a loss from the standpoint of garmi. We concluded that he has an obligation but it may only be in dinei Shomayim and thus not enforceable by a beis din. In this article we will study two other reasons why the borrower has to compensate you for the cost of the fine, that are enforceable by a beis din.

The first reason is that the fine is really levied on the borrower who parked the car and not on you, the owner of the car. The only reason the fine is levied on the owner of the car is because, whereas the identity of the one who parked is unknown to the authorities, the identity of the owner of the car is known to the authorities. This is evident from the fact that, according to a lawyer, if the owner can prove to the authorities that someone else parked the car they will transfer the fine to that person. Thus, really you were billed for your borrower’s debt to the authorities and your question is whether you can force the borrower to reimburse you for paying his bill.

This issue is discussed briefly in the Yerushalmi and its ruling is cited by the Rambam and SA (CM 128, 2). Thus the Rambam (Choveil 8, 6) writes, “The only time one who was forced to pay someone else’s debt is entitled to reimbursement is if the debt was for the payment of yearly personal (head tax) tax that everyone was required to pay, or the payment that was assessed on everyone when troops passed by a person’s property. It must be explicit that the person who was forced to pay was being forced to pay the other person’s debt and not his own debt.” (It seems that the local people were required to pay for the upkeep of the soldiers.)

In order to apply this ruling we need to first understand the meaning of the Rambam’s statement and then to understand the rationale for why the obligation is only in these cases.

The Yam Shel Shlomo (BK, 10, 21) and Ra’anach (2, 95) both explain that the reason the Rambam stresses that everyone was required by the government to pay these taxes is that only then, since the tax was fixed and fair even from a Torah standpoint, the individual on whom the tax was imposed was required to pay because dino demalchuso dino-one must obey secular law. The Rambam wishes to exclude unfair taxes (taxes which were imposed in an inequitable manner based on the whims and wishes of the tax assessor) which are viewed by Torah law as theft on the part of the government or the tax collector, since in the case of unfair taxes the person on whom the tax was imposed really did not owe any money to the government and he may do anything to avoid paying the tax. The fact that unfair imposition of taxes is considered theft on the part of the government is stated explicitly by the Gemara (BK 113A). The Mishna in Nedorim (27B) rules that one may even swear falsely in order to avoid paying such taxes. Therefore, if the tax authorities found another person to steal from, the first person does not need to reimburse him for his having been victimized by the government in his stead.

Therefore, the first issue we must determine is whether the government has the right under Torah law to fine a person for parking in a restricted spot. In any country in Chutz Lo’oretz where we say dino demalchuso dino, the government has this right. Even in Eretz Yisroel, where there is a dispute whether we say dino demalchuso dino (See the sefer Dino Demalchuso, Chapter 51 for a lengthy discussion.) the Chasam Sofer (Res CM 44) rules that laws that are in the public interest are certainly binding. Since it is beneficial that there should be orderly parking, the parking rules are sanctioned under Torah law and one is obligated to pay a fine that he incurred.

Having determined that the government has the authority under Torah law to impose a fine on one who parks illegally, we must examine whether the one who parked illegally must reimburse the person who was charged for his debt. In order to answer this question we must understand the rationale for the distinction made by the Rambam between taxes and other debts.

There are two approaches to explain this distinction. Many poskim, including the Aruch Hashulchan (CM 128, 5) understand, like the Maharit (1, 124) and Levush, that the taxes mentioned by the Rambam are just an example of a clear-cut debt that needs to be paid. Other poskim, including the Sema (128, 6) understand that it is only taxes that the payer is repaid, but the payer is not repaid for any other debts, legitimate or not.

If one follows the first approach your borrower must reimburse you for your payment since you were charged for his clear-cut debt. Furthermore it is clear that there was nothing that you could have done to avoid paying the fine.

In order to determine how those who follow the approach of the Sema would rule in this case, we must understand his rationale. The Beis Shlomo (res CM 123), based on the Sefer Haterumo, explains that the unique feature of taxes is that the government routinely charges one person to pay another person’s taxes. Basically, it is as if the government appoints one person to be the cosigner for the other person. Just like when one who voluntarily agreed to be a cosigner later pays the borrower’s debt, the debtor must repay his cosigner, so too if the government stipulated that A should be B’s cosigner and they charged A, B must reimburse him. If one follows this approach in your case, since the authorities basically appoint the owner of the car as the cosigner for the one who parked it, your borrower who parked must reimburse you for paying his debt.

The Nesivos (128, 5) suggests a different rationale for the Sema. His approach is that since a third party took A’s money to pay B’s debt, B does not have to reimburse A since B did not take anything from A and A did not give B anything. (We discussed this approach at length in the article of Beha’aloscho 5782.) If one follows this approach in your case (since in the end the authorities did not take the money from you but rather only exerted pressure on you to pay but you were the one who actually paid) your borrower needs to reimburse you since you gave something to your borrower: you paid his clear-cut debt.

Thus, according to all of these explanations your borrower must reimburse you for the fine you paid.

The second general reason that the borrower has to compensate you is that the Gemara says (in many places including BM 14A) that certain conditions of a contract are self-understood and therefore, even if they were not spelled out in the contract, they nevertheless apply. The example the Gemara gives is that if a person lent money (just as a favor without a heter issko), the borrower’s fixed assets automatically serve as collateral for his loan. Even though the loan contract made no mention of this obligation, since it is irrational to think that the lender would not require this obligation (since there is no reason for him to jeopardize his chances of repayment), we consider it as if this condition was understood and it automatically applies to the loan agreement.

Similarly, since you did a favor to your borrower and had nothing to gain from his borrowing your car, there is no reason to believe that you would agree to pay for the fines that he may incur when borrowing your car. Therefore, there is a tacit agreement between you and your borrower that he will pay for the fines that he incurs while he is in control of your car. Since he did not tell you that he returned your car until the next morning, he was still in control of the car when it was ticketed.

In conclusion: There are two reasons why your borrower is required to reimburse you for the fine you paid because it was incurred prior to his informing you of your car’s return. 1] The fine was really his debt that you paid and he must pay you back. 2] It was self-understood that he would pay for any fines incurred while he was in control of your car.


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