Detailed Explanation
Drilled! Jimmy or Mr. Fried implicates the following three laws.
1. A Borrower derives absolute benefit from the borrowed property; receiving the entitlement for personal use [Sha"ch - Choshen Mishpat 340:3] without having to pay a fee. Hence, the borrower assumes complete responsibility even to the extent of covering general accidental damages beyond his or her control (spare for paying for damage that occurs as a result of ordinary use [see subsequent issues for definition of "result of ordinary use"]) [Exodus 22:13].
2. While generally, a borrower (trustee) may not entrust a transportable deposit in the custody of a third party [Choshen Mishpat 342:1], barring obvious exclusions, it is generally assumed that a bailor (depositor) realizes that his/her deposit will be safeguarded or used by the trustee and/or his/her adult household members [Choshen Mishpat 291: 21] [See Issue 75].
Hence, the primary trustee is not negligent by entrusting the article in the responsible jurisdiction of his or her adult family members. In turn, the secondary trustee legitimately assumes liability.
3. What if the legitimate secondary trustee defaults? Does the primary trustee remain responsible to the depositor or did the primary trustee legitimately transfer complete liability to the secondary trustee whereby indemnifying himself/herself completely ?
Consider: There are two ways to view the implication of the depositor's implied consent to entrust the article with the primary trustee's household members as well.
a) When the primary trustee transfers the article to the secondary trustee, it is as if the depositor directly deposits the article in the hands of the secondary trustee. Consequently, the primary trustee virtually returned the article to the depositor whereby absolving himself/herself from any subsequent liability.
b) The primary trustee forever remains directly responsible to return the article or its compensation to the depositor. The implied consent simply provides the primary trustee moral permission to entrust the article in the hands of the adult household members. While the secondary trustee assumes liability as well, the final responsibility rests upon the shoulders of the initial trustee.
☞ Both viewpoints are soundly substantiated. As such, the depositor would be left with an impossible task to prove that the primary trustee remains liable. Consequently, the depositor will be unable to elicit money from the primary trustee, should the secondary trustee default [Ketzos Hachoshen, Choshen Mishpat 340].
Application:
Mr. Fried legitimately permitted Jimmy to use Herman's drill. Jimmy assumed liability. As a borrower, Jimmy is liable for damages due to negligence, theft, or accidental causes and is thus financially responsible for damaging the drill.
If he does not have money of his own yet, he remains liable to Herman and must pay him when he earns money. Unless otherwise stipulated, Herman cannot hold Mr. Fried responsible compensate him for Jimmy's present inability to pay for the damages.
♦
Correction:
In last week's issue, we wrote that Sara may not accept the payment from Mrs. Berman for Mr. Kagan. More correctly, Mrs. Berman does not fulfill her duties by paying Sara and remains liable if the money gets lost. In case of a borrowed item then indeed Sara may not accept it from Mrs. Berman, as she is assisting her in acting negligently with Kagan's belongings. A borrower's responsibility is to return the article directly to the owner. Assisting negligence in the lender's belongings is forbidden.
THANK YOU TO ALL WHO QUESTIONED!
