Thursday, January 15, 2009


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by Reb Avi Lebovitz

The Gemora (Bava Kamma 11) concludes that if one steals an item and ruins it, he is not able to simply return the broken item and pay for the damage; rather, he has to pay in cash for the entire item, or replace it with an equivalent item. However, when one damages, or borrows an item and it gets damaged by accident, he can simply return the item and pay the depreciation amount. Why? Tosfos explains that when one steals an item, they immediately acquire the item by removing it from the domain of its owner, and therefore are liable to reimburse the owner for the entire item (not just the difference from the time it was stolen and the time it is returned). But, when one damages, he is only responsible for the amount that the item depreciated due to the damage, but whatever remains still belongs to the original owner. Based on this, a borrower, who is responsible if an accident happens, since he is regarded as acquiring the object when he borrows it, he therefore is responsible for the entire item.

Why do we say that a borrower is making a kinyan and acquiring the object at the time that he accepts responsibility? Just as a paid custodian is only responsible for what was stolen but he can return whatever remains and just pay the difference, a borrower should be able to do the same? Tosfos understands that since a borrower is responsible for unavoidable accidents, his responsibility cannot begin at the time that the accident occurs because one cannot be liable for a complete accident. The only way that a borrower can be responsible for an accident is because he makes a kinyan on the object when he borrows it. Based on this, there is a major difference between the liability of a (paid or unpaid) custodian and that of a borrower. A custodian is responsible for their negligence in not protecting the object, and that obligation begins at the time of the incident. A borrower, on the other hand, is not responsible for the incident, but responsible at the moment he borrows it to return the item as it is at that moment.