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Beit Midrash Series P'ninat Mishpat

Return of “Borrowed” Pre-School Items – III

7
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Based on ruling 71104 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat (567)
Rabbi Yosef Goldberg
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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 that it was too little, too late (because of the lack of materials, her daughter stopped her plans) and that many of the items had 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 that pl’s claim that she originally stated the items were on loan is not convincing enough to extract money. Def’s letter of admission is binding but only from the time that pl needed the materials for her daughter. Regarding an object that one lent to another, the items are normally to be returned in the place where it was lent (Shulchan Aruch, Choshen Mishpat 293:1). Since pl brought the items to def’s pre-school, the expenses of transport to where pl wants them are on pl. Def is required, after a few days’ notice, to prepare the items for pick up. Pl vacillated as to whether she was willing to take the materials or was demanding their value. According to Halacha, a lender of objects cannot force a borrower to pay instead of returning them because that is like forcing him to buy them. However, in this case, since, at this point, pl has little to do with the materials and def, who has been using them, does not lose by keeping them, based on compromise, def will have to pay most of the value. Regarding pl’s request for depreciation due to use, she is entitled only from the time her daughter needed them (six months ago). Once a borrowing period is over, a borrower is obligated as a shomer sachar, and if she uses it after that point, she is either like a thief or obligated to pay as a renter. We assume def would rather not be a thief by using it, even if she did not know the halacha and beit din was in the midst of adjudication. Although pl did not demand payment as rental, when we estimate the depreciation (which is difficult), we will "round up" in the case of doubt. We therefore estimate the depreciation in the last six months as 10% of its present value.
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