Vayishlach-Used a Borrowed Car to Thwart Terrorists on Simchas Torah and the Car Sustained Damage

Question

I am an army reservist and I borrowed a car from a friend before Simchas Torah. When I heard what was going on Simchas Torah morning, I quickly ran home, changed into my army uniform and protective clothing and drove off to Gaza. When I arrived, I engaged in a shootout with the terrorists and Baruch Hashem killed two terrorists and the others fled. During the course of the shootout the car was hit by several bullets. Am I liable for the damages since it was a borrowed car?

Answer

Before dealing with your particular situation, we will clarify the halachah if you had not used the car to defend Jews.

When one borrows an object, he has the status of a shoeil which is one of the four Torah classes of shomrim-watchmen. A shoeil is responsible for all damages that are sustained by the object he borrowed, even if he is not blameworthy for the damages. The only exception is for damages that resulted from usage that was sanctioned by the owner, known as meiso machmas melocho.

The ruling that pertains to your situation under normal circumstances is a Mishna (BM 78A) that writes that if one rented a donkey to use on a hill and the renter took the donkey to a valley where it sustained damage due to the heat, the borrower is liable since the owner didn’t grant the borrower permission to take the donkey to the valley and the damage was sustained as a result of the renter’s usage in a valley. Similarly, in your case under normal circumstances, since the car’s owner never gave you permission to take his car to a place where shooting was taking place you would be liable for the damages that were sustained.

We should note further that the Gemara (BK 4A) classifies the liability a borrower has for damages that were sustained by the object he borrowed as payment for the damages that the borrower caused to the borrowed object.

Having clarified that under normal circumstances you would be liable, we must now determine if you have a dispensation since the damage was sustained as a result of your use of the borrowed object to protect other Jews.

We find in the Gemara one situation where a dispensation was granted to one who damaged another person’s property when the damages were suffered as a result of the damager’s attempt to protect his fellow Jew.

The situation where the Gemara (Sanhedrin 74A, BK 117B) records this dispensation is where B was chasing A in order to kill him and C chased after B in order to save A. The Gemara rules that if in the course of his pursuit, C damaged other people’s objects he is not liable for the damages. The Gemara explains that this dispensation was enacted by the Rabbonim in order to ensure that people will come to the aid of victims. The Rambam (Choveil U’mazik 8, 14) adds that the Chachomim also wanted to ensure the saver will go as fast as he can and will not slow down to avoid damaging other people’s property.

Thus, your question is if this dispensation applies in your situation. In fact, there is a major dispute whether the dispensation is restricted to the particular situation where it was enacted i.e., a narrow interpretation, or if it applies to any case where the goal of this enactment applies, i.e., a broad interpretation.

One major poseik who understood the dispensation in the broad sense is the Nesivos in two places (72, 17: 340, 6). In siman 340 he discusses a person who borrowed weapons with or without permission in order to protect people’s lives and the enemy captured the weapons.  In siman 72 he discusses one who borrowed equipment to fight a fire and the equipment was damaged. He rules in these cases that the borrower is not liable since these situations are included in the Gemara’s dispensation. Thus, according to the Nesivos you are not liable for the damages since you were saving Jewish lives.

However, there are poskim who disagree with the Nesivos. In a note on the Nesivos (siman 72), the Meshovev Nesivos differentiates that in the case of the Gemara the damage was sustained inadvertently in the course of the pursuit but the one who damaged in no way meant to use his victim’s object. However, in the case of the Nesivos the one who damaged purposely used someone else’s object. (The Meshovev was written by the Ketsos but this is an addition in brackets that was written by a student of the Ketsos.) The Meshovev argues that even though he did not want to damage the borrowed object, since he purposely used someone else’s object the dispensation of the Rabbonim does not apply. Thus, according to the Meshovev you are liable. However, it is important to note that the Meshovev does not offer any real proof and the argument that he brings does not apply to your situation, so it is just his opinion.

Another poseik who disagrees with the Nesivos is the Amudei Ohr (siman 116). He differentiates that the enactment of the Chachomim was made only in case of a sudden occurrence like the case of the Gemara where a bystander noticed A chasing B, but not where a person had time to plan his actions. However, again he does not offer any proof.

There is an explanation of the Pnei Yehoshua that sheds light on the above dispute and bears significantly on your question.

The Gemara (BK 60B) explains a pasuk as recounting that Dovid Hamelech once asked an urgent sheilo to the Rabbonim in Beis Lechem. Dovid’s army was battling the Pelishtim who were hiding in Jewish-owned heaps of barley. David asked if his soldiers would have to pay the owners if they set fire to their heaps of barley. The Rabbonim replied that if those who would set fire would be ordinary citizens, they would be liable since, while one is allowed to damage another person’s property in order to save his own life, he must pay for the damage. However, since David was a king and the soldiers were following his orders, he and they would have no liability.

The Pnei Yehoshua asks: why can’t we derive from the case where C chased B who chased A that even if King David would have been an ordinary citizen, he would not be liable, since King David is C, the Plishtim are B and the people who were being attacked are A and the owners of the heaps of barley are the people whose objects were on the road.

The Pnei Yehoshua answers that since King David himself was included in A and his life was also in danger, the enactment of the Gemara does not apply. The rationale of the Pnei Yehoshua is that since the enactment was to ensure that people will try to save other people’s lives, there is no need to do anything in case the one who damaged was himself one of the people whose life was in danger. Certainly, even without any enactment, he would have done his best since his own life was at stake.

We note that the Nesivos himself (340, 6) raises the possibility to differentiate in the manner of the Pnei Yehoshua but (He does not cite the Pnei Yehoshua.) he dismisses this possibility with the comment, “What difference does it make?” However, the rationale of the Pnei Yehoshua is quite strong.

If we now apply the rationale of the Pnei Yehoshua to the two rulings of the Nesivos, we realize that he will disagree with the Nesivos in both of his cases, even though the Pnei Yehoshua also interpreted the enactment in the broad sense. The reason he will disagree with the Nesivos is because in both of the cases the borrower’s life was at stake as well. Even though the Meshovev and Amudei Ohr do not spell out this difference explicitly, from their questions it seems that they meant to differentiate like the Pnei Yehoshua.

An important derivation from the Pnei Yehoshua is that he understood that the enactment of the Chachomim was not limited to the case where B chased A, as the Meshovev and Amudei Ohr contend, but applies to any case where a person who was himself not in danger damaged the property of an uninvolved person when trying to save someone.

Having determined that there is a dispute between the Nesivos and Pnei Yehoshua on one side and the Amudei Ohr and Meshovev on the other side we will study the opinions of the Rishonim. A much earlier source (fifteenth century) that the enactment applies to any case where the reason for the enactment applies is the Mahari Weill. He rules (res 148 and 149) that if A spent money to free a minor from captivity, beis din reimburses A immediately from the assets of the minor even though normally beis din cannot make minors pay out money. The reason he gives is because otherwise people will not spend money to save minors. Again, we see that he applies the enactment of the Rabbonon to a case where the reason for the rabbonim’s enactment applies but is completely different from the situation where it was enacted.

Another early source who applied the enactment to a different situation is the Maharach Ohr Zorua (res 25). In his case C, who was not involved, asked the gentile authorities to intervene to protect A from B who wanted to beat him up. He cites this enactment to free C from any liability for losses that were suffered by B or anyone else that resulted from C’s asking the authorities to intervene.

In a case very similar to yours, the Toras Hayoledes (chapter 20 footnote 3) applies the enactment to absolve a driver who took someone else’s car to transport a woman to the hospital to give birth and the car sustained damage as a result.

Thus, since you were not originally in danger and acted purely to save others, according to the Maharach Ohr Zorua, Mahari Weill, Pnei Yehoshua, and Nesivos you are not liable. Perhaps the Meshovev and Amudei Ohr would rule that you are liable. If you had been an endangered resident, only the Nesivos would free you from paying.

Another major poseik who dealt with this issue is Rav Moshe Feinstein (Iggros Moshe CM 2, 63) in a responsum to the late Bobover Rebbe. The Rebbe had borrowed money during the war which he sent to Europe to save Jewish lives. When the Rebbe’s creditors requested repayment after the war, the Rebbe claimed, based on this enactment, that he was not required to repay. Rav Moshe, without citing any sources, ruled against the Rebbe arguing that the enactment does not cover this case.

It seems that everyone agrees with Rav Moshe, because the enactment was made only to free someone from paying for damages that he did while saving someone, but not to absolve someone who damaged in order to eventually save someone. As Rav Moshe writes, if one follows the Rebbe’s understanding, the Rebbe could have robbed a bank in order to save Jewish lives.

However, what is important for us is that Rav Moshe went much further and wrote that the only damages that are absolved as a result of this enactment are those that were sustained by people or objects that were in the way. His proof is from the question of the Pnei Yehoshua (Rav Moshe does not cite the Pnei Yehoshua.): why Dovid was not absolved because he damaged in order to save people’s lives. Rav Moshe concluded that this proves that the enactment does not apply since the heaps of barley were not in David’s way. (One could contend that they were.) However, since the Pnei Yehoshua answered Rav Moshe’s question differently and other poskim agree with the Pnei Yehoshua, Rav Moshe’s proof falls away.

There are many interesting and practical applications of this enactment. Rav Wosner (Shevet Halevy 9, 293) was asked whether a Hatzolah driver was liable for the damages that he caused to a parked car while driving to save someone. He ruled, based on this enactment, that he does not have to pay. We should add that if the driver was careless, he would need to pay since then the damage was not related to saving lives.

Another application is where someone was driving properly when unexpectedly a careless person walked onto the road in front of him, and in order to avoid hitting him the driver swerved and damaged a parked car. Based on this enactment, the driver is not liable since he was trying to save the careless man.

In conclusion: There is a dispute if you need to pay but the more authoritative opinion is that you do not need to pay. In any case, if feasible, the people who were saved are required to pay for the damages but that is another discussion. Thus, if feasible the local residents should pay for the damages.