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Shabbat Parashat Emor| 5767

P'ninat Mishpat

Renter Who Left the Landlord’s Sukka in the Yard - Based on Halacha Psuka - vol. 6 - A Condensation of a P’sak by the Beit Din for Monetary Matters of S’derot
Case: The renter found the landlord’s sukka folded up in his yard upon beginning residence. He used the sukka with permission and then returned it to the yard. Upon inspecting the home after the end of the lease period, the landlord discovered that the sukka was missing and wants the renter to pay because he did not put it in a protected place. 
Ruling: First let us determine to what extent the renter is a shomer (watchman) over the sukka. It is true that without accepting responsibility to watch an item, one does not have the obligations of a shomer (Shulchan Aruch, Choshen Mishpat 291:2). However, the renter was aware that the landlord left the sukka on the property, demonstrating that the landlord was relying on him. He is, therefore, considered a shomer chinam (unpaid), who is responsible to pay if he is negligent. Furthermore, when he used the sukka, he became a sho’el (borrower), who has a higher level of obligation. However, once Sukkot finished and he folded up and returned the sukka to its place, the renter reverted to being a shomer chinam, even though he did not return the sukka to the owner himself. (Ketzot Hachoshen 198:5). The renter is not like a regular sho’el who finished using an object (who is a shomer sachar (for pay)) but a shomer chinam because the owner did not want it returned to him but to his property.
 After visiting the site and discussing the matter with neighbors, beit din concluded that the sukka’s locationwas reasonable, as the property was fenced off and the sukka was out of sight of pedestrians. The Shulchan Aruch (CM 291:5) writes that what is considered a protected place is subjective, and that a yard is sometimes acceptable. The Sema (ad loc.:21) points out that heavy things are not easily stolen from a courtyard. However, this applies only when the home is inhabited. However, at the time that the renter was leaving the house, the yard was no longer a protected place to leave the sukka.
 One could claim that when the renter returned the keys to the landlord, it ended the period of watching the sukka, as if he had returned it to him. However, it seems that since the landlord did not know that the sukka was, at that point, in an unprotected place, it cannot be considered returning it. However, one can imply from the Rama (Choshen Mishpat 188:2) that when a shomer returns the object to the same unprotected situation from which he took it, he can thereby end his period of being a shomer and be exempt from paying damages.
 Therefore, the renter is exempt from paying for the disappearance of the sukka because he returned it to the place where the owner had left it and from where he borrowed it.
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