I. Case: B buys an article from A. A stipulates that B must allow A to buy it back at a later date.
Essentially, B is lending the "sale money" to A. [Y.D. 174: 1].
What is the difference between renting out one's money and one's car?
II.
"You shall not cause your brother to take interest, interest of money, interest of food, interest of anything that he may take as interest " [Devarim 23: 20].
There are two basic differences between lending one's money and one's car.
When one lends his/her money, the borrower does not return the same money. Instead, the money belongs to the borrower to make use of its value. The borrower must return the borrowed value to the lender. As long as the borrower is honest, the lender is assured that the value will be replaced in full.
We refer to such an arrangement as a halva'ah.
As the lender does not assume a significant risk of not receiving the full value of the loan at the end of the term, the Torah exhorts the lender from charging for performing the kindness of lending to his/her brother/sister.
However, when one lends his/her car, the borrower returns the same car. The lender retains ownership of the car throughout. The lender lends the functionality of the car to the borrower. While the borrower is obliged to return the same car to the lender, the lender understands that there are a number of inherent risks to the article in this arrangement.
1) The article might break, get lost or stolen in the interim.
2) The article sustains attrition or wear and tear with every usage.
3) The value of the article may depreciate in the interim due to outside forces
We refer to such an arrangement as a hasha'lah.
When the risk is significant enough - the guidelines of which we will delineate shortly - the Torah permits the lender to demand that the user provide compensation for him/her having put the article in risk.
This is the premise for haskara or renting.
III
Let us explain.
1)
Background
T.L.C. Trustee Liability Chart
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Recklessness
פשיעה
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avoidable Theft/Loss not due to Recklessness
גניבה ואבידה
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Unforeseen/uncontrollable accidents
אונס
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Damage in course of normal use
מתה מחמת מלאכה
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1. שומר חנם
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Unpaid trustee
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Liable
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Absolved
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Absolved
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Liable
(may not use it)
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2a. שומר שכר
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Paid trustee
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Liable
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Liable
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Absolved
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Liable
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2b. שוכר
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Renter
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Liable
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Liable
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Absolved
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Absolved
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3. שואל
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Borrower
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Liable
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Liable
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Liable
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Absolved
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1) In Parshas Mishpatim the Torah delineates three/four gradient levels of trustees (shomrim) and their respective liabilities based upon the degree of benefits received from watching the article.
(a) According to Torah law, a shomer chinam or an unpaid trustee of a bailment is simply liable for damages or loss due to recklessness (peshia).
Accepting upon him/herself the responsibility to watch the article means that he/she will not act recklessly towards the bailment and will otherwise compensate the owner for losses due to negligence thereof.
Otherwise, he/she is generally exempt from compensating the owner for loss or damage of/to the article.
In other words; spare from a result of recklessness on the shomer chinam's part; were the trust to become damaged or lost, the owner's chances of retrieving its value or likeness-in-kind from an unpaid trustee are slim.
(b) In return for the partial benefit received; both a shomer sachor or a paid trustee [who receives payment but cannot use the bailment] and a socher, or a renter [who may use the bailment but must pay for it] accept upon him/herself an additional degree of liability - to cover any damages or losses that could have been prevented were the trustee on site (geneiva va'aveida).
(c) In return for the full benefit received; a shoel, or a borrower [who may use the bailment for free] accepts the highest tier of liability; to cover most accidental losses or damages including those of which could not have been avoided (onsin).
Nevertheless, a borrower is still absolved from paying for losses or damages due to extreme accidents or by virtue of its normal usage (ones gamur & meisa machmas melacha).
In other words; were the trust to become damaged or lost, the owner's chances of retrieving its value or likeness-in-kind from a borrower are fairly secure.
Contrast the borrower with the renter or shomer chinam.
Were the trust to become damaged or lost, the owner's chances of retrieving its value or likeness-in-kind from a renter or shomer chinam are far less secure.
IV
As seen, a "lender" who assumes a risk of loss of the article on "loan" (due to uncontrollable accidents) may charge the "user" a rental fee as compensation for assuming that "counterparty risk element."
2) An additional risk element involved in a hasha'lah/haskarah arrangement as opposed to a halva"ah arrangement is the risk of attrition.
Under a halva"ah arrangement, the borrower will generally never return to the lender a value less than he/she borrowed (see Issue 203 for an explanation regarding fiat money and inflation).
Under a hasha'lah/haskarah arrangement whereby the user uses the item and returns it to the "lender," there exists a risk of attrition, that the item will suffer from wear and tear due to the user's usage.
Assuming this risk factor, warrants the "lender" with an additional premise to demand a "rental fee" as compensation.
Both aforementioned factors independently 1) risk of complete loss due to accidents and/or 2) risk of wear and tear (when there is a reasonable risk of wear and tear) are sufficient factors which can justify for charging rent.
Thus, in a scenario where the "lender" requires the user to 1) assume full responsibility for loss due to accidents as well as 2) to pay for the wear and tear, the "lender" is not allowed to charge rent for allowing the user to use the item.
Similarly, one may not charge rent for permitting usage of an object where there exists no reasonable risk of wear and tear, that the user assumes liability even for losses due to accidents.
Such arrangements are similar to lending someone $100 and requesting $120 in return.
V.
Q. We mentioned in Section II that there could conceivably be a third difference between a "halva"ah and a hasha'lah/haskara.
That is, that in a hasha'lah/haskara arrangement, there is a risk that the value of the article may depreciate in the interim due to outside forces.
Is that a sufficient factor in it in itself to permit the "lender" to charge rent?
Meaning, if the "lender" requires the user to 1) assume full responsibility for loss due to accidents as well as 2) to pay for the wear and tear, but, the lender is willing to accept the article back as is if the article depreciates in the interim due to outside forces - may the "lender" charge rent?
No. For the "lender" to simply accept to swallow losses due to outside influences is an insufficient risk factor alone to permit the charging rent for the usage when the "user" accepts upon himself/herself 1) assume full responsibility for loss due to accidents as well as 2) to pay for the wear and tear [Y.D. 176: Sha"ch 4].
Application
