Q&A: A Borrower’s Acquisition
A Borrower’s Acquisition
Question
I saw in Or Sameach that he wrote in the laws of Sukkah and Lulav that if a person borrowed a lulav for a fixed period, and then the lender comes to take it back from the borrower, he has to perform an act of acquisition on it in order to fulfill his obligation of taking the lulav. And this is difficult for me: why is an acquisition needed? After all, with a borrowed lulav one does not fulfill the obligation, since we require “for yourselves” — meaning that it must be your own. So why does the lender need to perform an act of acquisition? Isn’t it entirely his already?
And I thought perhaps one could distinguish here between ownership of the principal and ownership of the use: the borrower does not fulfill the obligation because he has only ownership of the use rights, but not ownership of the principal itself. Whereas the lender has ownership of the principal but not ownership of the use rights, and perhaps we need both in order to satisfy “for yourselves,” and therefore an act of acquisition is required. (And it also seems to me that with a conditional gift given on condition that it be returned, the recipient does fulfill the obligation of lulav; is that correct?) a0
However, I saw in Tosafot on Bava Kamma 11a, s.v. “ein shamin,” who wrote as follows: “We do not appraise the carcass and the broken pieces for the owner, so that the thief would merely return the depreciation; rather, he must pay with a whole animal and superior vessels, and the broken pieces are his. And even though we maintain that ‘he shall return’ includes money-equivalent as money, even bran — a thief and robber are different… And the reason is that a thief and robber acquire it immediately when they remove it from the owner’s possession, whereas one who causes damage becomes liable only according to the damage he caused. And this is also the reason for the one who says this applies even to a borrower: since he is liable for unavoidable accidents, it turns out that he acquired it from the moment he took it from the owner’s possession.”
1. What does the Rabbi think of the words of Or Sameach? Is there a basis for my suggestion? a0
2. Is Tosafot here speaking about ownership of the principal or ownership of the use rights? a0
3. In the case of a borrower, or a thief and robber — are they obligated to return exactly what they took (for our purposes, the shovel), and only because the vessels were broken or the animal died do they pay money or a superior replacement, but fundamentally the obligation to return is on the object itself? Or perhaps they really acquired the vessel and the animal for all purposes, and the Torah merely obligated them to restore its value, and a borrower who did not cause damage simply returns the object itself as its value? In other words, is the obligation to return object-based, or is it really a personal obligation?
4. According to the Talmud’s conclusion there that we do appraise for a borrower, meaning that he did not acquire it, contrary to Tosafot’s understanding — then what is Or Sameach’s suggestion based on?
Answer
1-2. We find something similar in the case of a robber, where neither he nor the owner can consecrate the item: not he, because it is not his, and not the owner, because it is not in his possession. So we see that there is an intermediate state in which neither side has full ownership. (I assumed that “possession” here is also a kind of weak ownership, not merely technical control.)
As for the very ownership status of a borrower and a renter, the medieval authorities dispute this. Tosafot in several places writes that there is no ownership, but the Ritva and the Spanish medieval authorities hold that there is ownership here — ownership of the principal for the sake of its use. And the Taz claims that this is the only case in Jewish law where there is ownership of the use rights alone, rather than ownership of the principal for the use rights. The practical difference they mention is with regard to consecration (the Talmud in Arakhin regarding consecrating a rented house). Meaning, this is really just like the case of a robber and the owner. See my book on Bava Metzia, chapter “One Who Hires the Craftsmen,” where I discuss this at length (https://drive.google.com/open?id=1Q5r33gfFNU1IkLC0Tpp6zDTFZg4M26pO).
Tosafot compares a borrower to a robber, and its intention is what I wrote here. The question is how to define the “possession” that the borrower and robber have vis-à-vis the owner. It seems simply that this is indeed ownership of the use rights, or ownership of the principal for its use. However, as mentioned, according to Tosafot a borrower and renter have no ownership at all, only usage rights. But I do not know whether Tosafot in Bava Kamma also follows that approach. It seems not.
3. “And he shall return the stolen item” refers to the object itself, on the basis that your property is in his possession. The acquisition is only in order to become liable for unavoidable accidents. If the object was lost, then he returns its value; and it is not clear whether by doing so he fulfills the commandment of “and he shall return.”
4. Your question is really on all the medieval authorities who ruled in practice that a borrower does acquire. They would presumably separate the question of appraisal from the question of acquisition.