Question
Four weeks ago, we borrowed someone's apartment for Shabbos. That Shabbos, shrapnel from an Iranian missile crashed into the apartment, damaging the apartment and much of the furniture. The owner of the apartment claims that I am responsible for his loss since I had the status of a sho'eil since I got to use the apartment and its content for free. Is he correct? I should note that the government reimburses those who suffer damage from enemy action. Does that affect my liability?
Answer
First, we note that it is correct that one who uses someone else's property with permission has the status of a sho'eil and it is correct that a sho'eil is liable even for unforeseen damages that were not under his control-onsim. We note further that there is one type of unforeseen damage that a sho'eil is not liable for and that is called mei'so machmas melocho (which we will write mmm). MMM means that the one who borrowed the item used it in the matter that he was supposed to, but nonetheless the item suffered damage in the course of its proper use.
The Gemoro (BM 96B) explains that the borrower is not liable for mmm because he can argue that the lender gave it to him to use in the manner in which he used it. The Rishonim offer two explanations of this argument. The Ramban and Ritvo explain that the Gemoro means that the one who was negligent is the lender because he should have been aware of the capabilities of the item he was lending and he should not have given permission to use the item in a manner that was beyond its capabilities. The Rashbo says that since the rationale of the Gemoro is that since owner was aware of the possibility that the damage could happen, it is as if the owner gave permission for the borrower to use it even if it will be damaged as a result of its proper use.
Before we continue, we can narrow down your question. On the apartment itself you definitely do not have any liability since a shomeir (SA 301,1) has no liability for immovable property like an apartment. Furthermore, much of the content of the apartment you did not have permission to use. Therefore, on this part of the content you also do not have a question. Even if you were some kind of shomeir – and this is a dispute among the Rishonim-see SA (291, 5: 307, 2: 340, 4) – you certainly were not a sho'eil because you were not allowed to use it. No other shomeir besides a sho'eil is liable for onsim.
Therefore, your question only concerns movable objects that you were allowed to use.
One reason that you are not liable is based on a ruling of the Maharam of Rottenberg that is cited by the Mordechai (BM 371) and is ruled by both the SA (72, 44) and the Ramo (340, 1). In this case, A borrowed money from a gentile and gave the gentile collateral that was worth much more than the amount he borrowed. B got permission from A to use A's collateral as well in order to secure an additional loan for himself from the gentile lender.
Before either loan was repaid, the gentile's house, with A's collateral inside, was totally consumed by a blaze. Since local law freed the gentile from paying A for his lost collateral, A suffered a total loss. The Maharam was asked whether B was required to compensate A for part of his loss since A's loss was sustained at the time that B was making use of part of A's collateral.
The Maharam ruled that B does not owe anything for two reasons. One reason he gives is that B never performed an act of kinyan on A's collateral since he just left it by the gentile and a shomer is only liable if he performed an act of kinyan. His second reason is cited by the Ramo as being that A did not suffer any additional loss as a result of B's use of his collateral since even if B had not used his collateral, A would have lost the collateral. Thus, even though B did benefit from A's collateral he is not liable.
The ruling of the Maharam is cited by the Levush who deduces from it that if X borrowed Y's house and it then burned down (not because of X), X is not liable since it would have burned down anyway.
Many commentaries including the Sema (340, 1) and Shach ask on the Levush that his deduction is not well-taken since all shomerim including a sho'eil are not liable for immovable property like a house, as we mentioned earlier. The Shach (340, 1) additionally contests the Levush's deduction since when one borrows a house the house is now possessed by the borrower, unlike the collateral of the Maharam. However, we see that in a case like yours where the apartment contained movable property the Levush maintains that you are not liable (a missile and a fire are equivalent). The Sema did not disagree with the Levush on this point and certainly the expression of the Ramo indicates that he would absolve you of liability. Thus three major poskim-the Ramo, Levush and apparently the Sema agree that you are not liable for your renter's loss.
However, some disagree with the Ramo's interpretation of the Maharam. The Nesivos (340, 1) and the Sha'ar Mishpot (72, 38) ask on the Ramo that his interpretation of the Maharam cannot be correct because the Torah states that a sho'eil is liable even for the death of an animal that he borrowed and the Gemoro (BM 36B) states that one cannot attribute the death to a particular location, in the absence of any tangible cause. Therefore, these poskim deduce that the Ramo's criterion is incorrect and even if the borrower is not a factor in the lender's loss, he is nevertheless liable. They offer different explanations for the Maharam's ruling, which do not apply to your case. These poskim would not free you from liability based on the Maharam.
The Divrei Mishpot (340, 3), based on the explanation of the Ra'avad (BM 36B), justifies the Ramo's interpretation and answers these poskim's question. He explains that there is an essential difference between a borrowed animal that perished and collateral used by another person that was consumed by a fire. When an animal dies when it is on loan, the animal is in the possession of the borrower because if it had not died it would have been in the possession of the borrower. However, in the case of the collateral, if there had not been a fire, the collateral would have remained in the gentile's possession, where A wanted it to be. B is not liable because the collateral was not in his possession when the damage occurred.
According to this explanation in your case you are not liable because the movable objects were in the apartment that was hit by the missile not because of you but because the owner wanted them there. You did not even have permission to alter their location. Moreover, even though you had permission to use the apartment, the owner still retained ownership of the property and he was still using the apartment on that Shabbos because he was storing the items that you were not given permission to use such as the electric appliances. Thus, the owner and you jointly possessed the apartment on this Shabbos and the items were in the apartment because of one of the partners, namely, the owner.
The fact that the owner and you jointly possessed the apartment when it was damaged yields another possible reason to free you of liability. As noted earlier, many Rishonim maintain that in order to assume liability one must perform an act of kinyan. (This is the position of the Rambam and others and was the first reason of the Maharam as mentioned earlier.)
Based on the above, according to many you never made a kinyan in your situation even on the objects that you did have permission to use. The reason you did not have a kinyan of chotseir is that they maintain that a jointly owned property cannot serve as a kinyan of chotseir to enable one of the partners to acquire possessions belonging to the other partner. According to these opinions as long as you did not raise these objects (hagbo'oh) or use them (chazokoh) you are not liable.
In part 2 we will consider other reasons to absolve you of liability.
