Sources and Reasons:
A renter is liable for theft and loss
It is established that the law of a renter is like that of a paid guardian, who is liable for theft and loss and is exempt only in a case of אונס. As explained in the Mishnah, Bava Metzia 93a: “A paid guardian and a renter swear concerning an animal that was injured, captured, or died, and they pay for loss and theft.” This is likewise ruled by the Shulchan Aruch, Choshen Mishpat 303:2.
In light of the above, it would ostensibly follow in the first instance of this case that the renter should be liable to pay for the scooter, since he rented it, the scooter was stolen, and a renter is liable for theft.
However, we must consider the case before us. Since the theft occurred due to an אונס, and was not ordinary theft, but rather the renter was compelled to go to the hospital because he broke his arm, and consequently was unable to guard the rented scooter, perhaps theft that occurs through an אונס differs from ordinary theft and the renter is exempt. Although a paid guardian is liable for theft and loss, it is established that a paid guardian is exempt in cases of אונס.
Is a renter liable for theft that occurred through an אונס?
Indeed, we find that the Rishonim differ regarding a renter’s liability for theft in an אונס, as Rabbi Akiva Eiger brought in his glosses on the margin of the Shulchan Aruch, Choshen Mishpat 303:2. There are three views among the Rishonim on this matter.
A. Tosafot in Bava Metzia 42a, s.v. Amar, maintain that in a complete אונס—for example, where the item was guarded underground, or where the renter or paid guardian was overcome by illness—they are exempt. For the only difference between a paid guardian and an unpaid guardian is where he locked it in a manner that can withstand an ordinary wind but not every wind, or where the owner was present at the time that people enter; in such cases the paid guardian is liable because this constitutes some degree of negligence. But in a complete אונס he is entirely exempt, since it is established that a paid guardian is exempt in an אונס, including theft caused by an אונס.
B. The Nimukei Yosef, and Rabbeinu Yerucham in the name of the Ramban, maintain that if he placed it underground, he is liable if it was stolen; but if he was overcome by illness, he is exempt, because at that time he has no obligation whatsoever to guard it.
C. The Rashba, the Rosh, and the Tur, as well as Tosafot in Bava Kamma (57b), maintain that a paid guardian and a renter are liable for every אונס involving theft, unless the אונס affected the item itself—for example, armed robbers stole it while he was present and there was nothing he could do. But where the אונס affected the guardian himself, such as where he was overcome by illness and the like, he is liable if it was stolen.
In light of the above, in the case before us, since the renter fell, broke his arm, and was compelled to go by ambulance to the hospital, according to Tosafot in Bava Metzia 42a, as well as according to the Nimukei Yosef and the Ramban, he is exempt in such an אונס. He is liable only according to the Rashba, the Rosh, and the Tur.
Regarding the halachah in this dispute among the Rishonim, the Shulchan Aruch, Choshen Mishpat 303:2, rules in accordance with the Rosh and the Rashba, that a paid guardian is liable in every אונס other than an attack by armed robbers where he was present and could not save the item. It states:
A paid guardian is liable for theft and loss. Some say that even if he guarded it properly and placed the money underground at a depth of one hundred cubits, such that it could not be stolen except through tunnels; or even at a time when people sleep and it was stolen; or illness overcame him and he could not guard it; and all similar cases—he is liable. This applies even if he surrounded it with an iron wall, and even if, had he been there, he could not have saved it. He is liable for theft and loss unless he was actually there and could not save it.
Thus, according to the Shulchan Aruch, the renter should be liable for payment, for the Shulchan Aruch rules that a paid guardian is liable in every אונס, even where he could not have saved it had he been present, unless he was actually present and unable to save it. As the Sema explains in subparagraph 2, the reason is that every theft is close to an אונס, yet the Torah nevertheless makes him liable for it. Therefore, there is no distinction between a minor and a major אונס. The rule is that a guardian must keep his eyes open at all times regarding the item entrusted to him; then, if it was taken from him through an אונס, what could he have done? That is comparable to an animal that was injured or died, for which the Torah exempts him.
However, the Shach, subparagraph 4, writes that the primary ruling follows the authorities who hold that a paid guardian is exempt in theft involving a complete אונס, as the Maharshal ruled in chapter HaKones, no. 11.
Therefore, in practice, if both the renter and the lessor are Sephardim who accept the rulings of Maran, they cannot claim kim li against Maran, and the renter is liable. However, if one of them is not Sephardi, the defendant may claim kim li in accordance with the Maharshal, who holds that the renter is exempt in theft of this kind, which occurred through an אונס. I also saw that the Aruch HaShulchan, Choshen Mishpat 303:7, writes that theft in an אונס is a doubtful point of law; that is, one may claim kim li.
It should be noted that in this case the Shulchan Aruch presents this ruling with the expression “some say,” rather than anonymously. Even among authorities who follow Maran the Shulchan Aruch, the Acharonim differ as to whether the rule that one cannot claim kim li against Maran applies here as well. The Maharam ben Chaviv holds that the guardian may claim kim li, whereas the Ginat Veradim disagrees and writes that since the Shulchan Aruch cites only this view, one cannot claim kim li against it; since the Shulchan Aruch cites it alone, this indicates that he ruled accordingly.
The renter should be exempt because he handed it to his friend to guard
However, in the case under discussion, we must consider whether the renter may be exempted on the grounds that one guardian handed the item to another guardian. The renter did not abandon the item and leave because his arm was broken; rather, he handed the scooter to his friend to guard it. Perhaps for this reason the renter should not be liable for payment.
Although Bava Metzia 36a states: “A guardian who hands an item to another guardian: Rav says he is exempt, and Rabbi Yochanan says he is liable,” and the halachah follows Rabbi Yochanan, as Rava stated there on 36b: “The halachah is that a guardian who hands an item to another guardian is liable,” because the owner may say to him, “You are trusted by me with an oath; the other guardian is not trusted by me with an oath.”
Nevertheless, it is already explained in the Gemara there, in the incident involving that elderly woman, that wherever the owners themselves entrust their items to the second guardian, in such a case a guardian who hands an item to another guardian is not liable. This is likewise ruled as halachah, as stated in Shulchan Aruch, Choshen Mishpat 291:26: if it is the owners’ practice always to entrust this item to the second guardian, the first guardian who handed it to the second is exempt from payment.
Accordingly, in our case, since the renter handed the scooter to his friend to guard it, and since the second friend himself also rented a scooter from the lessor jointly with another friend, it is evident that the lessor trusts him with an oath, and the first renter should be exempt.
However, we must now consider whether the second renter is liable to pay the lessor for the scooter, since the scooter was stolen from his possession.
It is important to note that the friend is also considered a paid guardian, since he too now benefits from the scooter, as he uses and rides it. Therefore, the first guardian certainly did not diminish the standard of guarding by handing it to his friend to guard. Indeed, one might have reason to say that the second guardian is considered a borrower, but that is not the issue before us, since the first guardian agrees that his friend, the second guardian, should not incur a greater liability than that of a paid guardian.
The second guardian should also be exempt, as a paid guardian robbed by armed bandits
We are left to consider whether there is grounds to exempt the second guardian, from whose possession the scooter was stolen, notwithstanding that a paid guardian is liable for theft and loss.
Indeed, in light of the Shulchan Aruch cited above, it appears that he should be exempt, because the thieves used violence and stole the scooter from his possession despite his presence and despite his resistance. The Shulchan Aruch has already ruled that if he was present and could not save it, he is exempt, like the law of armed bandits, for which a paid guardian is exempt.
As explained in Bava Metzia 93b: “These are the cases of אונס for which a paid guardian is exempt, such as: ‘And Sheba came and took them, and they struck the servants by the sword.’” The Gemara explains that in such an אונס even the town guards, upon whom the townspeople rely, are exempt; all the more so an ordinary paid guardian.
Should the renter be liable because he handed it to an inferior guardian?
We must further consider whether the renter should be liable for payment because, after his injury, he handed the scooter to his friend to guard, while that friend was already riding one scooter. Undoubtedly, one person’s ability to guard two scooters is inferior to that of one person guarding one scooter.
Indeed, this requires consideration. However, in my humble opinion, since it is customary in a time of need for a person to give his friend a scooter to guard for him even when the friend is already riding one scooter—for example, when he needs to use the restroom, eat for a moment, speak on the telephone, and the like—therefore handing over the scooter cannot be viewed as unusual in a way that reduces the level of guarding below what people ordinarily do.
However, it must be considered that since a renter has the status of a paid guardian, it is established that a paid guardian must provide a superior degree of guarding. Certainly, handing a scooter to someone who is already riding another scooter is not called superior guarding. Bava Metzia 93b explains that a paid guardian is obligated to provide a superior standard of guarding because he receives payment for guarding, in the words of the Gemara: “For this purpose I pay you wages: that you should guard it with extra guarding.”
The Shulchan Aruch likewise rules, Choshen Mishpat 303:11: if a shepherd who is a paid guardian led animals across a bridge, and one pushed another and it fell into the current of a river, he is liable, because he should have led them across one by one. A guardian receives payment only to provide superior guarding; since he was negligent in their guarding from the outset by leading them across together, even though an אונס occurred at the end when it fell, he is liable.
A renter is not obligated to provide a more superior standard of guarding than ordinary guarding
However, on this matter we find in a responsum of the Chatam Sofer, Choshen Mishpat no. 16, that he proved from the words of the Rishonim that the requirement of extra guarding for a paid guardian applies specifically to a paid guardian who received money in order to provide a superior degree of guarding. A renter, however, whose law is that of a paid guardian, is not said to be required to provide superior guarding. This is because he did not receive additional payment in order to guard the rented item; rather, because he benefits from the item, and because he has acquired a reputation as a trustworthy person, he is defined as a paid guardian only with respect to liability for theft, loss, and the like. But since he did not receive payment for additional guarding, he need not provide superior guarding, but only the ordinary standard of guarding.
We likewise find in the Maharshach, no. 169, regarding one who guards a lost item, that even according to the ruling we follow, that of Rabbi Yosef, who maintains that one who guards a lost item has the status of a paid guardian, this does not apply regarding the standard of guarding, to obligate him in a higher standard like that of a paid guardian. For we do not say concerning him what we say concerning other paid guardians: “For this purpose I pay you wages, that you should guard it with extra guarding,” but only regarding his liability for theft and loss.
However, see Ketzot HaChoshen 72, subparagraph 5, who disagrees with the Maharshach, and who likewise cites this view in the name of the Mishneh LaMelech, Hilchot Sechirut chapter 10, halachah 1. Nevertheless, it appears straightforward that one may claim kim li in accordance with the Maharshach and the Chatam Sofer on this matter.
Signing a contract that obligates renters even in cases of אונס is binding
However, all that has been stated thus far must be qualified: it applies only where the renters did not sign any document obligating them in cases of אונס. But if they signed any paper obligating them to return the scooter in every case, including cases of אונס, anyone who signs is obligated to fulfill his undertaking.
For the Mishnah in Bava Metzia 94a states that an unpaid guardian may stipulate to be exempt from an oath, and the Gemara there explains that similarly a paid guardian may stipulate to have the status of a borrower. No kinyan is required for an undertaking of this kind.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
