The Torah prohibits an animal owned by a Jew to do work on Shabbat, even if the animal is rented or loaned to a non-Jew. Therefore, a Jew is permitted only to rent an animal to a non-Jew if he stipulates that the non-Jew will return the animal before Shabbat. The Shulhan Aruch (246:2) discusses a case in which the non-Jew violated the agreement and did not return the animal before Shabbat. The animal is liable to work on Shabbat and cause its owner to violate the prohibition. Maran says that the solution to this problem is to make the animal hefker, i.e. to relinquish ownership. By doing so, the non-Jew now owns the animal, and any work done is in the domain of the non-Jew.
Maran says you can even execute the hefker, relinquishing of ownership, privately, without the presence of additional observers. This is similar to the hefker made before Pesach to dispose of hametz.
The commentaries point out an internal contradiction in Maran’s opinion. How can Maran say that it is sufficient to do hefker privately, when he himself holds like the opinion of the Rambam that hefker is only valid when performed in front of a least one person?
The Mahasit Ha’shekel (246:9) answers that, in principle, Maran does hold like the Rambam, that hefker requires at least one outside person. The presence of an additional person serves to publicize the transaction. However, in this case, even the Rambam would agree that there is no need for additional people, since everybody knows that his animal is in the domain of the non-Jew. They will therefore assume that he relinquished ownership rather than violate the Shabbat.
The Rama gives another answer. Hefker requires the presence of additional people only when the owner’s intent is that someone else will come and take ownership of the item. In this case, the owner is only interested in removing his connection from the animal; he does not want the non-Jew to actually become the owner. Such a hefker does not require additional people.
The Ben Ish Hai in his Torah Lishma deals with a case in which the non-Jew actually does take possession of the animal and refuses to return it to the Jew after Shabbat. The Ben Ish Hai provided a solution to this scenario. The Jew can take the non-Jew to a Rabbonc Court and sue him for the monetary loss of the animal incurred by the fact that the non-Jew did not return the animal before Shabbat as stipulated in the rental agreement. The court will rule that because he indirectly caused a loss, the Jew has license to take back the animal on his own-even using force.
SUMMARY
If a non-Jew does not return a rented animal before Shabbat, the Jewish owner should relinquish ownership of the animal, and this will take effect, even if done without the presence of additional people.
