Just Fine or Unjust Fine

Q. I have a neighbor who is constantly nudging me to lend him my trimmer. Knowing how irresponsible he is, I tried to avoid lending it. But I finally told him he could borrow it on condition that if he broke it he would have to pay a fine that is really much more than the value. Just as I suspected, he broke the tool. Can I make him pay the amount he agreed?

A. This question has many fascinating dimensions. It is important to know that under ordinary circumstances, it is a wonderful mitzvah to lend out our possessions to others. When someone sets aside certain objects to lend to others, this kind of "free loan" is known in the Jewish community as a "gemach", short for "gemilut chasadim" -- "loving kindness." Anyone who establishes such a gemach is doing a wonderful kindness to his or her neighbors, and a vibrant Jewish neighborhood typically has a large number of such informal "gemachs". (Here in Efrat a person can borrow tables, chairs, hotplates, serving utensils, household medical equipment - even wedding gowns.)

However, one is certainly justified in taking steps to prevent damage, and if this is your own private trimmer and you are concerned that your neighbor will not take proper care of it, you are certainly justified in trying to protect your property. Of course it is best if you can avoid hurting your neighbor's feelings by singling him out; try to word your refusal in a non-specific manner. ("I think I may need my trimmer in a few days.")

But once you have agreed to lend out your possessions, you cannot collect an unreasonable fine. According to Jewish law, there are three different categories of damage payments:

1. The actual value of the damage. The borrower is required to pay this amount even if there is no particular agreement. Any borrower is liable to pay any damage beyond normal wear and tear on the item, or alternatively to repair the damage.

2. The value to the owner. Very often an item has special value to the owner. Perhaps he has made special modifications to the item, or it has sentimental value, or is hard to obtain. In such a case, the owner is justified in making a condition that the borrower will have to pay the subjective value. Such a fine is justified because it reflects the owner's valuation.

3. Excessive fines. Jewish law places many limitations on punitive fines. The main concern is that the borrower does not really agree whole-heartedly to pay; he agrees only because he is sure he will not really have to pay. This brings us back to a theme that has been repeatedly mentioned in this column: the high level of agreement which Jewish law typically demands to create a valid agreement. We have explained this by suggesting that in Jewish tradition, the agreement or "meeting of the minds" between the two sides to the party is more than a means to an end of creating a mutually beneficial arrangement. On the contrary, our material needs are themselves a means to stimulate us to human contact in the marketplace, thus creating an incentive to increase understanding and cooperation among mankind.

So if the amount you stipulated as a fine truly reflects your own valuation of the trimmer, because of its unique usefulness to you, your condition is valid and enforceable, and you may demand that your neighbor pay it. If the amount is excessive and punitive, then it is inappropriate to demand the full amount.

Even in those cases where there is no ethical problem with demanding the full amount, it is worthy asking yourself if this will have a desirable impact on your neighborly relations. You might ask yourself how you would feel if you were on the other side of the fence and you had accidentally damaged something you borrowed. You should think carefully before you demand a payment that is beyond the ordinary value of your trimmer.

SOURCES: Shulchan Arukh and Rema, Choshen Mishpat 97:1, 207:13.