In this week’s Parsha,
the Torah tells us “Vatimalei ha’aretz chamas, And the
land was filled with chamas.” [Bereishis 6:1] Rashi
explains that “chamas” refers to thievery. Many meforshim
indicate that this was a more insidious form of stealing – one
in which it was either not possible or not the accepted custom
for the victim to recoup his loss from the thief.1
It was for this reason that HaShem was “compelled” to destroy
mankind – not only were people stealing, but they were doing it
in a devious way so as to avoid any consequences for their actions.2
The Torah teaches us through this narrative the extreme caution
we must take when it comes to recognizing what property is ours,
to do with what we want, and what belongs to others and is off
limits to us.
In a fascinating teshuva,
the Chavas Yair rules that even if a group of merchants
all “forgive” each other in advance for any stealing or otherwise
illegal business practices that may take place amongst them, this
arrangement is not halachically binding and does not lift the
prohibition from upon them. So integral is the respect that one
must have for another’s property, and so contrary to the way HaShem
desires for the world to run is such an arrangement, that it simply
cannot hold. The Chavas Yair points to our Parsha to exhibit
how egregious is even “petty” stealing in the eyes of HaShem.
[Teshuvos #163]
In this week’s Parsha
Encounters we will BE”H examine an area of the laws of
“stealing” that can come up in our day to day lives.
It is not uncommon
for one to find himself in a situation in which it would be beneficial
for him to use an item that belongs to a friend. If the friend
is available, there is no question that the would-be borrower
would ask his friend for permission to use the item. The question
that often arises is what the halacha is in a situation
where the owner is not available to be asked.
The Halachic Background
The Shulchan Aruch
states clearly that “It is prohibited min haTorah to steal
even a tiny amount – and this is forbidden even if done as a joke
and even if the intention is to return the item.”3
Furthermore, the Shulchan Aruch rules, “Even one who borrows
something without the knowledge of the owners is called a thief.”4
This would seem to address our question clearly and definitively.
One could suggest, however, that our question is somewhat different
– what if the one taking the item knows for sure that the
one he is borrowing from would gladly let him take and use this
item?
The Gemora in Bava
Metzia5 relates an incident where a sharecropper brought
out fruit for Rav Ashi and Mar Zutra to eat. Mar Zutra abstained
from eating the fruit until the owner of the field, Mari Bar Issak,
came home. Tosafos points out that even though Mar Zutra
was certain that Mari Bar Issak would be pleased if they ate his
fruit, even without his permission, this was nonetheless prohibited.
They explain as follows:
There is a famous
dispute between Rava and Abaye regarding the halachic status of
“ye’ush shelo mida’as.” The standard case that this dispute
revolves around is when one finds a lost item before the
owner of the item realizes that he has lost it. Under normal
circumstances, once the owner realizes that his item is lost,
he gives up hope of ever finding it, thus allowing the finder
of the object to claim ownership of it when he picks it up. However,
if the finder picks up the object prior to the owner’s
realization of its loss, then the item actually still belongs
to the owner at the time it is picked up. The owner is only “miya’eish”
(gives up hope) after the finder has already picked it
up. It is in this case that Rava and Abaye have their dispute.
Rava maintains that since, in the end, the owner gives up hope,
it is permissible for the finder to keep and use the item despite
the fact that when he found it, the owner was not yet aware of
its loss. The halacha, however, follows the ruling of Abaye. He
maintains that all the while the original owner does not know
that his item was lost, we can not consider “yeiush” to
have “kicked in.” Therefore, if the finder picked up the item
prior to the owner’s realization of loss, the finder can not use
or keep the item. Even after the owner is truly miya’eish,
it is too late. Yeiush must take place prior to
the finder picking up the item.
Tosafos likens
the case of Mar Zutra eating Mari Bar Issak’s fruit to the case
of yeiush shelo mida’as. Even though Mari Bar Issak would
be very happy to learn that Mar Zutra had partaken of his fruit,
this is like a case of yeiush shelo mida’as. At the actual
time of eating, he did not yet know that his fruit was being eaten.
Tosafos therefore rules that it is not permissible to partake
of someone else’s food under these circumstances, all the while
the owner does not know that his food is being consumed.
While this specific
case mentioned by Tosafos is not explicitly discussed in
the Shulchan Aruch, it is discussed extensively amongst
the Acharonim.
The Shach
would like to disagree with the assertion of Tosafos above.6
The Shach does not accept that the ruling of Abaye
regarding ye’ush shelo mida’as should be applicable to
a scenario where one borrows an item from someone he knows will
not mind. The difference is that when it comes to the case of
ye’ush, even after the original owner does in fact give
up hope, that is not because he wants to relinquish his
claim to the lost item – it is merely out of a realization that
he has no choice. The item is lost. That is why we view the
item arriving in the hands of the finder as arriving “bi’issur.”
In our case, however, when the owner realizes what happened to
his item or food, on the contrary, he is happy to know what it
was used for and has no misgivings regarding its use. Therefore,
it is considered as having come into the hands of the borrower
retroactively, with full permission of the owner.
Many poskim,
however, strongly disagree with the ruling of the Shach
on this issue.
What is the Halacha?
It is important
to note that we are only discussing situations where the borrower,
based on his relationship with the owner, feels that he “knows”
the owner would not mind his borrowing the item. These rules
do not apply to a case where the borrower is unsure of
the owner’s attitude towards his using or borrowing the item.
Items that the Borrower Consumes and Plans to Return a Different
Item in its Stead:
Even though the Shach
clearly permits borrowing an item and consuming it through its
use (if the borrower assesses that the owner would not mind),
a great many poskim who discuss this issue disagree with
this ruling. The Shulchan Aruch HaRav writes, “Even if
it is clear [to the borrower] that when the owner finds out that
his item was taken, [the owner] will be happy and rejoice [at
the fact that his item was used] due to their close friendship,
still, it is forbidden to benefit from [the item] without the
owner’s knowledge… even if the owner is his close friend… since
he does not know about [the borrower’s taking the item] at the
time of the taking, the borrower has benefited bi’issur…
And this is something the masses should be informed about, as
many people stumble in this [law] due to lack of knowledge [of
this prohibition].”7 This is also the opinion of the
Ketzos HaChoshen.8 Many later poskim
also prohibit borrowing under these circumstances. This was
the opinion of HaGaon Rav Shlomo Zalman Auerbach zt”l.9
This is also the ruling of Rav Binaymin Zilber shlit”a10
and Rav Yitzchak Zilbershtein shlit”a.11
An Item that is Borrowed and Returned “As Is”:
Even though many poskim
prohibit borrowing an item even if the plan is to return the item
unchanged,12 there are many poskim who are,
under these circumstances, willing to rely on the Shach
and permit this type of borrowing. The Shulchan Aruch HaRav
seems to rule this way.13 This was also the opinion
of HaGaon Rav Yosef Chaim Sonnenfeld zt”l14
and HaGaon Rav Shlomo Zalman Auerbach zt”l.15
An Item that People are not Particular
About Lending to Others for Use
The above rulings
apply only regarding an item that we have reason to believe the
average owner would not be willing to lend to a stranger. That
is when the question of whether the borrower’s assessment of the
owner’s temperament is a valid matir. If, however, the
item in question is the type that nobody would mind someone
else’s using – even a stranger – then the halacha is clear
that it is permissible to use.16 For this reason,
it is permissible for an average (i.e. not overly heavy) person
to sit on a bench belonging even to a complete stranger without
first asking permission.17,18 But, this is only the
case if one assesses that no one would mind if this item
were used. If even a small percentage of people would not allow
use of this item, then one is not allowed to use it without permission.19
If one Received Permission to Use
an Item
Obviously, if the
owner has granted permission for one to take or use an item, it
is permissible for the borrower to take it. The poskim
point out that unless the permission was granted specifically
for a one-time usage, one does not need to ask every time he wishes
to borrow an item. If this is an item that the borrower does
not think the owner would mind lending again, the original permission
suffices for future use as well.20
Items Borrowed for Use for a Mitzvah
There is much discussion
amongst the Acharonim regarding borrowing items for Mitzvah
use – like a siddur, sefer or tallis – without the
knowledge of the owner. There are varied views amongst the poskim
and many cases where the practical halacha will change based on
the circumstances.21 What is clear, however, is that
if one has the opportunity to ask the owner, he must do so before
taking the item.22
______________________________
1 See, for
example, Ohr HaChaim s.v. Ha’aretz chamas
2 Bereishis
Rabbah 31:5
3 Choshen
Mishpat 348:1
4 358:5
5 22a
6 C.M.
358:1. Although the poskim commonly attribute this opinion
to the Shach, it should be noted that the Shach
himself prefaces his differing opinion with the words “Ee lav
dimistafina, hayisi omeir...”
7 Hilchos
Metziah U’Pikadon 4
8 262:1
9 Halichos
Shlomo 19 note 13
10 Az
Nidbaru 7:16 and 12:65.7
11 Sefer
Aleinu Lishabeach on Bereishis pg. 99. See also Sefer
Toras Hayoledes 39:2 note 2
12 See Az
Nidbaru 7:16 who says that even though there are those who
are lenient regarding this, “yeish lihachmir b’issur gezel
hachamur.”
13 Hichos
She’eilah 5. See, however, Pischei Choshen vol. 4,
7 note 4 who addresses this and discusses alternate ways to understand
this ruling.
14 Teshuvos
Salmas Chaim #764
15 Halichos
Shlomo 19 note 13
16 C.M.
359:1
17 Rema
381:1. In such a case, even if the item breaks while being used,
the borrower is exempt from paying, as a normal (i.e. fully permitted)
borrower would be exempt due to meisa machmas melacha.
See Pischei Choshen vol. 4, 7 note 4.
18 There
are those that use this ruling to explain the Mishna Berurah
in siman 1:2 regarding using someone else’s water for netilas
yedayim if he will be able to return other water in its place.
Since water is not something people are particular about (if it
will be replenished), according to this rule, it would be permissible.
19 This is
due to the rule of “ain holchin bi mamon achar harov.”
20 Az
Nidbaru 11:41
21 See O.C.
14:4 and M.B. 16; O.C. 25 and M.B. 53; Aruch
HaShulchan O.C. 14:11 and 13 and C.M. 72:1; Salamas
Chaim #764 and Halichos Shlomo 19 note 13 who is only
meykil to use a siddur or sefer if one knows
for sure the owner is not makpid (like the Shach
mentioned above).
22 M.B.
14:13