Submitted by the Bais Hora’ah
Q: A friend approached me and requested a favor. He wanted to rent a car for a week, but didn’t have a credit card. He asked if I could rent the car on my credit card and register him as an additional driver. I agreed to do the chessed, and we went about it in a way that avoided ribbis (see Business Weekly #202).
When I received my credit card statement at the end of the month, I was astonished to find that I was still being charged for the rental car. When I called my friend, he apologized, but then stopped answering my phone calls. I went to the car rental office and explained the situation. They suggested that I take their spare key, locate the car, and return it, and they would then terminate the rental and stop charging my card.
That night, I strolled around my friend’s neighborhood, found the car and returned it to the rental agency. My friend had left his computer in the car, and I took it as a mashkon (collateral) to ensure that he would repay the full amount charged by the rental agency.
The next day, my friend called the rental agency to inform them that the car had been stolen. They told him that I had returned the car, and that he could call me to retrieve his computer.
Was I allowed to seize his computer as a mashkon until he repays me?
A: When someone uses his friend’s credit card to purchase something, the bank that issued the credit card does not recognize him as a party in the transaction. Instead, the bank views the charge as though the cardholder instructed them to pay the seller (in this case, the rental agency) for the transaction, and it holds the cardholder liable for that amount. Essentially, then, you lent your friend the amount he charged to your card, because he is liable to you, not to the bank.
At the outset of a loan, a lender may demand a mashkon as collateral. But once he already loaned the money, the Torah (Devarim 24:10) prohibits him from demanding a mashkon in the words: Lo savo el beiso la’avot avoto — You shall not enter his home to take collateral (codified in Shulchan Aruch, C.M. 97:6). Although the Torah specifically mentions entering the borrower’s home, the halachah is the same if the lender stands outside the borrower’s home and demands collateral against his will. Furthermore, he may not accost the borrower outdoors and seize an item he is holding (Sma, ibid. 7, following the ruling of Rambam and Shulchan Aruch).
What if a person did not seize a mashkon from the borrower but accessed an object that was already out of the borrower’s domain? For instance, if the borrower gave the lender (or someone else) an object to safeguard, and the lender now wants to seize that item as collateral for the loan, is he allowed to do so?
The Shulchan Aruch (C.M. 4:1) rules that this is permissible, and Poskim deliberate whether this would also pertain to an object belonging to the borrower that was sitting, unguarded, in the public domain (Chiddushei Harim 97:3; see Kesef Hakodashim). The Yeshuos Yisrael (4:3) argues that the lender may not seize the borrower’s belongings that are being safeguarded by someone else or are in the public domain; he considers this akin to taking them directly from the borrower’s property.
Although these halachos would seem to indicate that you acted incorrectly in seizing the computer, in your case, you were in fact permitted to retrieve it from the rental car, for two reasons:
1) You didn’t really seize anything from the borrower. You simply returned the car, which you were entitled to do to avoid further charges on your credit card. The mitzvah of hashavas aveidah then obligated you to take your friend’s possessions from the car and return them to him.
Since you were permitted — and even obligated — to take possession of those objects, you are now allowed to keep them as a mashkon.
2) The prohibition against seizing a mashkon is limited to cases involving a loan (see Shulchan Aruch, ibid. 97:14). By keeping the car longer than the week you agreed to, your friend became a mazik by racking up debt on your credit card without your permission. In such a case, you are entitled to seize a mashkon, as long as you are willing to settle the case with him as soon as he makes himself available (ibid. 4:1; see Business Weekly #198).