Mr. Isaacs ran a bris kit gemach, which included a pillow, two white outfits, cloth and disposable diapers, bandages, creams, etc. One evening, he received a call from Mr. Ross.

“We had a baby last week,” said Mr. Ross. “Can we borrow the bris kit for Wednesday morning?”

“Mazel tov!” replied Mr. Isaacs. “Come by Tuesday evening.”

“Do you charge for using it?” asked Mr. Ross.

“We charge a token fee of $15,” answered Mr. Isaacs. “It’s mostly to cover the expenses of dry cleaning and replenishing supplies.”

“That’s perfectly understandable,” said Mr. Ross.

On Tuesday, Mr. Ross picked up the bris kit. While driving home, he was stopped by armed thugs, who forced him out of the car and drove off!

Mr. Ross immediately alerted the police and reported the incident to his insurance company. He made his way home, shaken. His wife organized the necessary items for the bris.

After the bris, Mr. Ross called to apologize for the loss of the bris kit. “I was mugged last night and the bris kit was stolen,” he said to Mr. Isaacs. “I’ll pay you for it.”

“That’s really unfortunate,” Mr. Isaacs replied, “but if you were mugged, you don’t have to pay for the bris kit. Armed robbery is considered oness (uncontrollable circumstances)” (C.M. 303:3).

“So what!” said Mr. Ross. “Since I borrowed the bris set, I’m a sho’el and responsible even for oness” (C.M. 340:1).

“But you paid $15,” insisted Mr. Isaacs. “You are a renter (socher) and exempt from oness.”

“But you said that the $15 was to cover expenses; that’s not called renting,” objected Mr. Ross. “I know other gemachs that charge $50 for the usage. That’s renting!”

“I’m not sure of that,” said Mr. Isaacs. “Let’s discuss it with Rabbi Dayan.”

Mr. Isaacs called Rabbi Dayan. “Does a small charge, mostly to cover expenses, make the person who uses the bris kit a socher?

“The Gemara (B.M. 94b) indicates that a borrower is liable even for oness (uncontrollable circumstances) because the benefit is entirely his and he does not pay for the usage,” replied Rabbi Dayan. “However, if the owner receives even a token payment, perhaps even less than a perutah, it is considered a rental, not a loan; the recipient is a socher (renter), not a sho’el (borrower)” (see Ketzos Hachoshen 340:5; Minchas Chinuch 59[15] citing Shach).

“What about a charge not for profit, just to cover expenses?” asked Mr. Isaacs.

“It seems that a payment that does not provide any profit, just to cover costs, is not considered a payment,” answered Rabbi Dayan. “For example, when a person who borrows an animal feeds it, this is not considered payment, since the animal is now serving him and the owner does not benefit from this. Thus, if the charge is just to cover direct expenses, the borrower would still be a sho’el and not a socher” (see Ohr Same’ach, Hil. She’eilah 1:1).

“This seems a chiddush!” remarked Mr. Isaacs. “Does anyone write so explicitly?”

“I haven’t seen so,” acknowledged Rabbi Dayan. “However, a converse halachah is ruled by the Tashbetz (3:261). A shomer chinam (unpaid guardian) of an animal who uses it to cover the feeding expenditures does not become a shomer sachar (paid guardian), since he has no net gain from the use. Similarly, a lender who charges only to cover his expenses should not become a renter, since he has no net gain from the loan.”

“What if the charge is meant to cover depreciation or general overhead?” asked Mr. Isaacs. “For example, people who don’t pay, cloth diapers that get worn out or are not returned, or purchase of additional outfits.”

“Direct, actual depreciation might still be considered covering loss,” replied Rabbi Dayan. “However, if the charge is beyond the actual expenses or depreciation, even slightly, the borrower would be considered a socher. The gain from this particular loan is profit to cover losses from elsewhere. The user would then be exempt from oness, unless he wanted to pay of his own volition. However, the gemach can stipulate in their rules and regulations that that the user always accept the greater liability of a sho’el.”