Submitted by the Bais Hora’ah
Q: Someone borrowed my car, and was issued both a moving violation and parking tickets while he had possession of it. He did not pay those tickets, and now the authorities are demanding that I pay. The borrower admits to having committed some of the violations, but says that some of them were issued unlawfully.
He claims that since he is a grama on these tickets, he is not required to pay for them. Is he correct, or is he required to pay the fines?
A: In cases in which a violator of traffic laws is certain to be caught, such as if he went through a red light that is monitored by a camera, the damage is considered garmi (direct causation), and he is certainly required to pay.
The question is: what happens in cases in which the violator is not certain to be caught, such as parking violations that were incurred because a traffic cop happened to pass by while the car was parked illegally. Does the fact that it is considered a grama (indirect causation) absolve the person who borrowed the car from payment?
Now, a borrower is classified as a shomer (guardian), and any shomer who was negligent in guarding an animal or object is a grama, because he didn’t directly inflict the damage, and yet we require him to pay (Beis Yosef 66:41; Shu”t Chasam Sofer, Choshen Mishpat 140; see Shulchan Aruch Harav Orach Chaim 443, Kuntres Acharon 2).
Some note, however, that we only find this rule applied to cases in which the actual item under the guardianship of the shomer was harmed through his negligence, not when an external financial loss is caused to the owner of the object (Shu”t Minchas Yitzchak 2:88, 4 and other poskim; cf. Shu”t Chasam Sofer ibid., cited in Pischei Teshuvah 55:1). In your case, since the borrower’s actions didn’t cause damage to your car, but rather caused you to suffer a loss by incurring fines that you must pay, we cannot require him to pay in beis din, although, like all cases of grama, he would be required to pay latzeis yedei Shomayim (to avoid retribution in Heaven).
Nevertheless, there are two precedents to require him to pay the fines, even in beis din.
The halachah is that if Reuven owed Shimon money, and Shimon coerced Levi to pay Reuven’s loan, Levi cannot force Reuven to pay him back (Shulchan Aruch, Choshen Mishpat 128:2 with Shach 10, but see also Aruch Hashulchan 5). Since Levi had no halachic obligation to pay the loan, Reuven can tell him that it was his misfortune that brought about this coerced payment (Sefer Haterumos 70:2).
If Reuven owed taxes to the government, however, and Levi was forced to pay for him because they couldn’t find Reuven and the law allows them to force a fellow citizen to pay on his behalf, Levi is entitled to demand that payment back from Reuven, since he was lawfully required to make the payment on Reuven’s behalf (Shulchan Aruch 128:2).
In our case, if you are required to pay the tickets due to dina d’malchusa dina (local law is upheld in halachah), and the government will not accept your claim that you weren’t the responsible party, your friend must reimburse you for the tickets. In such a case, the authorities expect the driver to take responsibility for fines he accrues, but they send the tickets to the car owner because he serves as a guarantor that the tickets will be paid. Therefore, this situation is comparable to the case of the taxes where the payer is entitled to compensation (Meishiv Behalachah 13).
If, however, the authorities had no right to issue those tickets, and they were written out unfairly, then you cannot demand compensation from the driver.
The borrower may be required to pay because he is considered an areiv (guarantor), because there is a tacit agreement between the borrower and owner, similar to the contract signed by a renter at a car rental agency, that the owner will not lose money on fines racked up by the borrower or renter (see Nesivos 176:51).
[According to this approach, the borrower might be required to pay even if the tickets were issued unlawfully, because his agreement is to pay all tickets received while he had the car. We might say, however, that since tickets issued unlawfully are rare, the car owner did not include such tickets in his tacit agreement with the borrower, who is therefore absolved from paying such tickets.]