Question

Mirel borrowed a Pesach mixer from her neighbor,
Tzirel. She worked it too hard and the motor burned out. Mirel is a
housewife who has no money of her own. Is her husband liable to pay for
the damage she caused?

Answer

The Mishnah states in Tractate Bovo Kamo
(87a) that if a married woman causes damage, she is temporarily exempt
from paying. However, if the marriage ends, she becomes liable to pay for
the damage. Whatever a married woman owns really belongs to her husband.
Since she has no property of her own, she is unable to pay for the damage
she caused. She does remain liable for the damage. If she becomes widowed
or divorced, it is assumed that she acquires funds, from which she is
expected to pay the damages. It would therefore seem that since Mirel has
no money of her own, no compensation is payable at the present time.

However, the Maharshal (Yam shel Shlomo, Bovo
Kamo, Chapter 8, No. 29) asserts that nowadays the situation is
different. He quotes the Ra’avan who is of the opinion that since the
wife generally has a free hand in the running of the household, whatever
she does for the good of the household is automatically considered as
having her husband’s approval. When she borrows, hires or purchases
articles for this purpose, she is considered to be acting as her
husband’s agent, even if he is unaware of the transaction having taken
place. He automatically becomes responsible for any borrowed or hired
item.

The reason for this liability is takonas hashuk
(lit. “for the good of the market”). The Rabbis assumed that a husband
would wish to take on such responsibility in order to encourage people to
continue doing business with his wife. If he would shrug off such
responsibility, others would be reluctant to do business with her in the
future.

Even if a wife would buy clothing for herself, her
husband would be liable to pay for it as long as she had a genuine need
for these clothes. If she bought very expensive clothes, even though her
husband had a moderate income, he would not have to pay for them. Such
expenses are not considered reasonable for a woman in her situation.
Nevertheless, if she showed her extravagant purchase to her husband and he
failed to voice his objection, this is considered as tacit approval. He
will then have to foot the bill!

Similarly, if she borrowed a priceless diamond
necklace from a wealthy friend without her husband’s knowledge, she
herself would be liable if it got lost, and not her husband. This is not
the type of jewelry that women in her position usually wear. Were she to
borrow a less expensive piece of jewelry, which women like her do wear,
her husband would be responsible for it even if he knew nothing about her
borrowing it. A woman in her situation does put on jewelry of this type on
certain occasions.

As
to our original question, Mirel is considered as having borrowed the mixer
on behalf of her husband. Mirel wished to use the mixer to prepare food
for the family, which is part of her duties as a housewife. There was no
need for her to obtain her husband’s permission for this. He became
responsible for the safe return of the mixer. Since it was damaged through
negligent use, he must pay for it. He is considered as being a
negligent shomer (guardian)!