What Would Rashi Say?

I grew up in the most provincial of settings. In our home, we spoke a mix of English and Yiddish that no one who didn't come from Jewish Eastern Europe could possibly understand. I went to Hebrew school four days a week taught by black hats from New York City. They came to Milwaukee to try and make some money teaching Torah and Talmud, something they couldn't do in the major league Jewish community of their home town. Some, even though they were born in the US, barely spoke English. Then there was our rabbi, a sage arbiter of all disputes involving family and business in our little community of war survivors. I don't use the word sage lightly. The man truly had devaykus, the spirit of God inside him.

Our rules of living were based less on Western law than they were on the source of much but certainly not all of Western law, the Torah and Talmud. Our community behaved as if we knew better than American judges and cops about what was good and bad, and what required punishment and what didn't. I felt the same way.

I still have those rules of the old neighborhood embedded in me. They are the first thing my mind conjures up when something bad happens in my interactions with others and with groups of others. I instantly think, WWRS, What Would Rashi Say, even though I haven't believed in God in four decades.

Jewish law is amazingly intricate. The rabbis of old spent an incredible amount of time discussing contingencies (most possible, some not) in human interactions and how they should be governed based on interpretations of the Torah. Some of those contingencies require little or no interpretation. They are fairly explicitly laid out in the Torah.

For example, and most pertinent to this post, are the rules of borrowing and safekeeping. Suppose for instance, a friend gives you his car because he's going away for awhile. You take good care of it, but something bad happens. Let's say for example, you park the car on the street next to your house, and some drunk drives into it while it's parked, smashing the door. Do you owe your friend anything?

The answer can be found in Exodus. "If a man gives a donkey, an ox, a sheep or any other animal to his neighbor for safekeeping and it dies or is injured or is taken away while no one is looking, the issue between them will be settled by the taking of an oath before the LORD that the neighbor did not lay hands on the other person's property. The owner is to accept this, and no restitution is required." The car is like a donkey. The car is damaged while no one is looking. The friend didn't create the damage. He's off the hook. End of story.

In fact, the above incident happened to me when I was in graduate school. Not with a donkey or course, but with a friend's car. He gave it to me because he was going out of town for awhile. I parked it safely, I thought, in front of my house. Some drunk bashed in the door with his car. I even knew who the drunk was. I confronted him. He wouldn't confess. By Jewish law, I was off the hook.

But...here's the rub. I don't live in my little Jewish shtetl of war survivors anymore. I live fully in the Western World dominated by modern law. And while my mind may instantly think, WWRS, Rashi doesn't play well outside of the shtetl world. The fact is that my friend isn't Jewish and even if he were, wouldn't likely understand or appreciate me invoking Exodus and Jewish law. The car was in my hands. Someone smashed it while it was in my possession. If I valued my friendship, I'd get that car fixed.

Plus, this event is a grey zone in the law, actually. I probably should have parked the car off the street somehow, just to be extra sure it was safe. Also, I did use the vehicle and didn't just house it. I barely hesitated, said to hell with Jewish law, and sent the car to the repair shop. Thirty years after this incident we're still good friends, partly as a result of me ignoring my instincts and doing what was "right" in terms of American law and culture.

Many years later, something like this happened to me again. This time is wasn't a car but a friend's laptop. He's from Lebanon. It was an old laptop. I borrowed it for a week. I turned it on one day and through no fault of my own, the hard drive crashed. Sh*t happens. The hard drive crashed during normal use; all I did was turn the thing on. Rashi likely would say I owed this friend nothing. He says about this situation, "Just as [the animal's] dying naturally is something he cannot prevent, so, too, the case of injury and captivity [must be such] that he had no way of preventing it." Or as one of my old rabbis might say, "Suppose you borrow a bat. You're just using it at a game. You swing and the bat cracks. You apologize, but you don't have to get your friend a new bat. That's just normal use. The bat was probably ready to crack. But...suppose you strike out and then out of anger pound the bat against the ground. It cracks. Now, you're liable."

But I knew my friend wouldn't see it that way. Exodus isn't exactly anything my friend values as a legal document. He wanted his laptop fixed. I agreed. My old rabbis and maybe even Rashi might have rolled their eyes, but I ignored Jewish law and followed the rules of America. When in Rome do as the Romans or something like that.

But recently, I put my foot down. I had borrowed a DVD of a Yiddish movie from a Jewish library. It was old and heavily used (Who knew people watched Yiddish movies?). As I pulled the DVD out of its case, the brittle thing cracked in two. I brought back the DVD and a week later was sent an email telling me I was being fined $36.

Again, Exodus came to mind. And this time, I wasn't dealing with a Christian or a Muslim. This was a Jewish library. And Jewish libraries, even ones in the United States, should follow Jewish law. Yes, the DVD was cracked. But it was like the donkey in Exodus. It was damaged through no fault of mine. I owed them nothing.

I wrote back the library telling them their rules on damages were not halachic (adhering to Jewish law) in the least. I quoted Exodus. The Jewish interpretation of this rule of the Torah is very explicit:

"SHO'EL - the borrower is one who borrows an item in order to use it and becomes obligated to take care of it. He is liable for damages in cases of Peshi'ah (negligence), theft or loss, and Ones (an unavoidable accident). He is exempt from damages only in a case of "Meisah Machmas Melachah," when the item was damaged in the normal manner of usage, or if the item was damaged while its owner was working for the borrower ("Be'alav Imo"). The intention is to use the item but not to guard the object."

How did the library respond? How could they respond? The library let me off of course. I owed them nothing. For once, maybe the only time in my life, the rules of the shtetl of war survivors where I grew up actually applied to the real world. Hooray! In the end, I also wrote the library a check for seventy two dollars so they could buy a new DVD or two of their choice. After all they are a charity service. I think that both my old rabbis and Rashi would have approved. All is well except for one thing: the library emailed me (as I was typing this post, actually) to say they don't want my donation. It wouldn't be right, they've told me. I have one response to that. What would Rashi say?