לעילוי נשמת

יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: Reuven and four friends rented a car that had bangs and scratches from Shimon; Reuven gave a deposit check. When they returned the car, Shimon claimed they damaged it. Reuven is sure no damage occurred when he was in the car and assumes (but is unsure) the damage was there before. His friends deny they owe anything and are unwilling to speak seriously to Shimon about it. Shimon cashed Reuven’s deposit check and says that if he wants money back, he should pay for the damage or make his friends do so. Reuven and Shimon preferred not to go to beit din and approached me for guidance. We decided I would present the general principles (without possibly impactful questions) on whether Shimon can hold Reuven responsible for the whole group or whether he must pursue the others if he wants their payment.

Answer: There are two halachic issues to discuss regarding the extent of Reuven’s responsibility: 1. Does Reuven have more than 20% responsibility for the car, and if so, to what extent? 2. Is indirect responsibility activated because the others refuse to take responsibility?

The Yerushalmi (Shvuot 5:1) concludes that if two people borrow a sum of money together, they become areivim (guarantors) for each other, even without explicit agreement for that. In other words, one of the borrowers could end up paying the lender the entire amount. (If he acted correctly – see Pitchei Choshen, Halva’ah 14:14-18 – the arev can demand reimbursement from the other borrower – Shulchan Aruch, Choshen Mishpat 130:1). The Shulchan Aruch (CM 77:1) extends this concept to two who buy an object together (regarding payment for it), and the Rama (ad loc.; see Shach ad loc. 1) adds two who accept an object to watch (regarding payment if they do not successfully return it). This is thus a broad concept that should apply also to rentals. In essence, renting a car contains two elements that can lead to payment – paying for the right to use it, which is like buying (see Bava Metzia 56b), and paying if he does not return it intact, like a watchman (see Mishpat Haschirut 1:9).

The two main forms of arevim are: a regular arev and an arev kablan. A regular arev is responsible to potentially pay for what his friend owes, but only when the creditor has a valid reason to view the debt as impractical to receive from the debtor (Shulchan Aruch, CM 129:8). An arev kablan is treated like a direct recipient of a loan even though someone else is the ultimate beneficiary. As a result, while a creditor can approach a regular arev only after it is apparent that the debtor will not pay, he can approach an arev kablan before even trying the debtor (ibid. 15).

Rishonim disagree on the status of two who borrow together. The Rosh (Shvuot 5:2) considers each lender as an arev kablan, which means that the borrower can take full payment from either without even trying to get half from the other. The Sha’ar Mishpat (77:1) explains that we view the matter as if each of the borrowers received all the money, no matter how they decided to split it among them. The Shulchan Aruch (CM 77:1), though, accepts the opinion of the rishonim who say that each is a borrower on half and a regular arev on the other, so that generally each person only has to pay when his partner will not.

At what point has the lender exhausted his necessary efforts to receive payment from the borrower and can demand pay from an arev? The Shulchan Aruch (CM 129:10) says a case where one can demand payment from the arev is if the other borrower is a powerful person who does not listen to beit din. The Rama (ad loc.) cites, but does not accept, an opinion that we wait until beit din tries to force the borrower to pay. Clearly, though, if there has been only refusal to pay without being summoned by beit din, it is too early to demand payment from the arev (see also Bava Batra 174a). This is even clearer if the debtor has real claims for exemption, in which case going to beit din before paying is the defendant’s right (even if he is presently not eager to do so).

Rabbi Mann is a dayan for Eretz Hemdah and a staff member of Yeshiva University’s Gruss Kollel in Israel. He is a senior member of the Eretz Hemdah responder staff, editor of Hemdat Yamim and the author of “Living the Halachic Process Volumes 1 and 2” and “A Glimpse of Greatness.”