Chaim had an old car that he would regularly rent out to the fellows of his kollel for a nominal fee.
Moshe asked if he could use the car for the afternoon to do some errands.
“With pleasure,” Chaim said. “However, before you take the car, I’d like you to read this statement of terms.”
1. The user of the car shall pay $0.30 per mile.
2. The user of the car is fully liable for damages, even for uncontrollable circumstances (oness) and even for damage due to malfunctioning (meisa machmas melacha).
“Wow, that’s quite stiff!” exclaimed Moshe. “Usually, a person who rents something is liable only for loss and theft, but not beyond that.”
“I know, but I don’t want a headache,” said Chaim. “This way, I know that I’m legally covered if anything happens.”
Moshe took the keys from Chaim. “Thanks a lot,” he said. “I expect to be back within two hours.”
While Moshe was in a store shopping, he heard gunshots and saw frantic police activity in the parking lot. When he returned to the car after things had quieted, he saw that all four car tires had been punctured!
Moshe called Chaim. “You’ll never believe what happened!” he exclaimed.
“What?” asked Chaim, concerned.
“All four of your tires got punctured in a shoot-out in the parking lot,” Moshe said.
“I’ll have the car towed to the mechanic and have him replace the tires,” said Chaim. “You’re responsible for them, though. Remember, the agreement included liability even for uncontrollable circumstances and malfunctioning!”
Moshe thought of his nearly empty bank account and the various loans he had taken over the past year. “I never expected that this would really happen,” he said to Chaim. “It clearly was not my fault at all!”
Later that day, Chaim related the story to his chavrusa (study partner). “I know it’s tough for Moshe to pay,” Chaim said, “but he read the terms and agreed to them.”
“I’m not sure that your agreement is legally binding,” said his chavrusa. “Your terms are an additional obligation beyond the regular responsibility of a renter. Acceptance of an additional obligation usually needs a signed contract, a kinyan (act of transaction), or a handshake, at least.”
“It seems to me that an agreement is an agreement,” said Chaim, “but I’ll check with Rabbi Dayan.”
Chaim called Rabbi Dayan and presented the issue. “Is reading the terms legally binding,” he asked, “even if not accompanied with any kinyan?”
“A renter who agreed to be responsible for uncontrollable circumstances (oness) is liable, even without a signed contract or kinyan,” answered Rabbi Dayan. “There is a dispute, however, whether this applies also to meisa machmas melacha.
“The Gemara (B.M. 94a) teaches that a guardian (shomer), who is generally exempt from uncontrollable circumstances (oness), can stipulate and accept responsibility as a borrower (sho’el), who is liable even for oness,” explained Rabbi Dayan. “The Torah provides default liabilities for guardians, but it is possible to increase or decrease their liability. According to many authorities, this is based on the principle that in many monetary matters a person can agree to terms not warranted by the Torah. Rabi Yochanan maintains that the renter does not even need a kinyan here. The benefit of his enhanced reputation as a trustworthy person, by accepting the additional liability of oness, brings him to commit sincerely even without a kinyan (C.M. 291:27; 305:4).”
“And what about meisa machmas melacha?” asked Chaim.
“The Ketzos Hachoshen (340:1) cites opposing opinions as to whether a borrower who accepts liability for meisa mechamas melacha suffices with verbal stipulation alone,” replied Rabbi Dayan. “The Nesivos (340:2) holds that a verbal commitment suffices. On account of the stipulation, the renter is like any other person who used the item without permission and is liable for damage. Aruch Hashulchan (C.M. 340:7; 291:57) also rules this way, provided that the stipulation is made when receiving the item; thus he enters the shemirah (guardianship) with a greater responsibility.”