One who receives, at his own request, the property of another, for free use, upon the agreement that it shall be returned to the owner (Ḳid. 47b). He is distinguished from the borrower of money, the "loweh" (), in that the latter need not return the property which he has received, but may return it in kind.Biblical Law.
The Biblical law concerning the liability of the borrower (Ex. xxii. 13, 14; R. V., 14, 15) holds such person to the strictest accountability for the property borrowed. Inasmuch as it is given him at his request for use without pay, the law requires of him not merely the ordinary care that must be given to property in the hands of a bailee, but it holds him absolutely responsible for its return to the owner; and if it is lost by him or stolen from him, or if it consist in cattle which die while in his possession, he is not permitted to offer any defense to the claim of the owner, but must make absolute restitution.
The Biblical law cites one exception to this general rule; namely, if the owner accompanies the property into the possession of the borrower, the latter is not obliged to make restitution. Thus the Mishnah says, "If one borrows a cow and borrows or hires the owner with her, or if he borrows or hires the owner, and then borrows the cow and the latter dies, he is not liable; but if he borrows the cow, afterward either borrowing or hiring the owner, and the cow dies, he is liable" (Mishnah B. M. viii.). In the former case the decision is based on the fact that the owner is with her at the time that she goes into the borrower's possession; in the latter case the owner is not with her at such time.Talmudic Exceptions.
The Talmudic law established several other exceptions, based upon a proper interpretation of the Biblical text. Inasmuch as the property was borrowed to be used, the borrower ought not to be held responsible for any depreciation in value, or for any damages which result to the property, from the legitimate use for which it was borrowed. Rab therefore decided that the borrower of the cow was not responsible for what in modern law would be called "reasonable wear and tear," or, as the Talmudic phrase more tersely expresses it, , "if she died from work." "Not only if she is wasted in flesh through labor, is he not liable, but if she dies from the labor, he is not liable, for the borrower may say, 'I did not borrow her to seat her on a chair'" (B. M. 96b); and in a case where a man borrowed an ax which was broken while in use, Rab decided that if the borrower could prove that he did not put it to any extraordinary use, he was not liable (B. M. ib.).
Other exceptions whereby the borrower is released from making restitution are the following: If he borrows the article for a specific time, he is not liable for a casualty after the time has expired (B. M. 81a), although ordinarily he is responsible for the article until it has actually been returned to the owner (Mishnah B. M. viii. 3). If he borrows an article and at the same time the other borrows an article from him, his responsibility is changed to that of a bailee for hire (B. M. 81b). Finally, he may make a special agreement with the owner of the article, releasing himself from liability (Mishnah B. M. vii. 10). Unless a specific time has been fixed between the borrower and the owner, the borrower must return the article as soon as he has ceased to use it (Maimonides, "Yad," She'elah, i. 5; Ḥoshen Mishpaṭ, 341, 1); and he has no right to loan the borrowed article to another (ib. 342, 1).Beginning and Extent of Liability.
The rights and liabilities of the borrower begin, first, when the object is actually taken into his possession by "drawing" it toward him, according to R. Eleazar: "As they decreed 'drawing' for purchaser, so also they decreed 'drawing' for bailees"; and, second, when he has begun to use it. R. Huna said, "If one borrows an ax and splits wood with it, he has acquired it, and, if he does not split, he does not acquire it" (B. M. 99a). The liability of the borrower is limited only to the value of the injured property (B. M. 94b); hence when a man borrowed an ax and through carelessness broke it, R. Kahana and R. Assi decided that he must return the pieces to the owner after they have been valued, paying an additional sum sufficient to cover the full value of the ax as he received it (B. M. 97a).
As the borrower is one of the four classes of bailees mentioned in Ex. xx. 7-15, the subject will be further elucidated by reference to articles Bailment, Hiring and Letting. For borrower of money see Loans and Usury. For borrower giving pledge see Pledge and Mortgage.
- Yad, She'elah, ch. i.-iii.;
- Ḥoshen Mishpaṭ, ch. cccxl.-cccxlvii.