Q: Someone allowed me to use his vacation home for the winter. During this time, flooding occurred, causing significant damage to the building. Do I carry liability for the damage?
A: A sho’el who borrows is responsible even for damage beyond his control. However, the Gemara (B.M. 56a) derives from verses that a guardian is responsible only if he was entrusted with moveable items of inherent worth, but not if entrusted with real estate or documents, which have no inherent worth (C.M. 301:1).
For this reason, if you borrowed a house and it burned down or was damaged by flooding, you are not responsible even as a sho’el according to most authorities, since the building is built into the ground (Rama 301:1; 95:1; Shach 95:1). [However, you would be responsible for the moveable furniture, at least that which you used (see Nesivos 340:8; 95:1 (end); Shach 202:3).]
Despite this exemption, the Rambam rules that the guardian is responsible if he was negligent, since this is considered as damaging (Shach 301:3). However, most authorities rule that a guardian of real estate is legally exempt even from negligence, unless he actively damaged (SM”A 301:3; Pischei Teshuva 301:4). Even so, the guardian has a moral responsibility to pay (chiyuv b’dinei shamayim) if he was negligent (Pischei Choshen, Pikadon, 1:ftnt. 51). Furthermore, a paid guardian for real estate or documents forfeits his salary if he did not guard properly (C.M. 301:1).
Authored by Rabbi Meir Orlian
These articles are for learning purposes only and cannot be used for final halachic decision.
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