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based on ruling 71104 of the Eretz Hemdah-Gazit Rabbinical Courts

Return of “Borrowed” Pre-School Items – II


Beit Din Eretz Hemda - Gazit

Adar 21 5780
Case: The defendant (=def) runs a religious pre-school program in an Israeli town and started employing the plaintiff’s (=pl) daughter-in-law (=dil) a few years ago. Shortly thereafter, pl gave several thousand shekels worth of pre-school accessories (tables, books, toys, etc.) in a few installments. A year ago, dil stopped working at the pre-school, of her own accord. Pl demanded the items back, claiming that she had stated it was a loan. Def refused but wrote a letter acknowledging the items belong to pl with the promise to return them to her if a relative of pl opens a pre-school program. Months later, pl told def that pl’s daughter is doing so, and def sent her some of the items. Pl claimed it was too little, too late (because of the lack of materials, her daughter stopped her plans), and many of the items have been seriously damaged. Pl now wants 30,000 shekels rather than a return of the materials. Def contends that pl did not stipulate that she might want the materials back; if she would have, def would not have taken them because it caused her to throw out old, still usable, materials. She had every reason to believe it was a donation to an altruistic religious organization close to pl’s heart. The letter admitting the items were pl’s was due to a threat, right before the beginning of the school year, that pl would come to take them.

Ruling: We saw last time that pl’s claim that she originally stated the items were on loan is not convincing enough to extract money.

Def claims that her admission letter was written under duress. However, the Shulchan Aruch (Choshen Mishpat 81:17) rules that even those claims that are effective against an imperfect admission do not work against an admission in writing. On the other hand, the admission’s extent is limited to that which is written in the letter.

A "gift" that returns at a certain point can take different forms: 1) she’eila (a loan); 2) a gift for a certain time (ibid. 241:6). In this case, neither side proved which of the constructs was used. One difference between them is whether the recipient is responsible to guard the items and pay if he was not successful (according to #2, the recipient is exempt). Even a borrower (#1) is exempt from damages that occurred as a result of normal use (ibid. 340:1). Therefore, either way, def will be exempt from much of the damage. Those items that normally get fully used in a few years would not need to be accounted for at all. If viewed as a borrower, def would be responsible for some of the damages that were not due to natural wear and tear. Def would also be obligated to swear that there was no negligence that would obligate her to pay for damages.

Since being a borrower obligates the recipient, def would have had to realize that she was becoming a borrower to be obligated in that way. We do not have proof that this occurred. She would not have to be aware of becoming the recipient of a gift for a certain time, as there are no special obligations, just a need to return that which is no longer hers. Therefore, while def must return the materials, she would not be required to pay.

Next time we will discuss how to return the materials.
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