Breaking And Entering
Reuven is in the process of moving from one city to another. He arranges
for a moving truck to come on a specific day to move his furniture and
belongings. While they are moving his things, Reuven suddenly realizes
that he has more furniture stored in the communal storage room in his
building. However, the only neighbor who has the key to the communal
storage room is out of town. To reschedule the movers for another day
would cause a considerable financial expense for Reuven.
In this situation, is there any way that Reuven would be permitted to
break the lock on the storage room, and would he have to replace the lock
or pay the value of an equivalent lock if he does so?
Reuven is permitted to break the lock on the storage room. However, this
is only if he purchases a new lock of equivalent value _before_ breaking
it, and immediately replaces the lock after breaking it. He should then
give the keys to the new lock to one of the other residents of the
building, so that the resident can give the keys to the neighbor in charge
of the storage room upon his return from his trip. (1)
Sources:
(1) The Shulchan Oruch (Choshen Mishpat 378:1) writes: "It is forbidden
to damage your friend's property. If one did so, even if he (the damager)
derived no benefit from the damage - he is obligated to pay for the
entire damage, whether he damaged inadvertently or deliberately."
The SM"A there (1) explains that by starting off talking about what is
forbidden and concluding by talking about payment, the Shulchan Oruch is
trying to teach us two separate things. First of all, it is forbidden to
damage someone even if your intent is to reimburse him, just as one may
not steal with the intent to pay back (Choshen Mishpat 348:1). Secondly,
the obligation to pay for damages applies even if you had no benefit from
the damage that you did, and even if it was completely unintentional.
In our case, it seems reasonable to say that the neighbor with the key in
his possession was not negligent by leaving for a short time and not
leaving the key with another neighbor. He cannot be expected to be
constantly in his home, and generally a person would give some
forewarning when he must move items from storage. Therefore, since the
lock is serving the purpose that it was intended for, and it is jointly
owned by all residents of the building, none of the residents would have
permission to break it, even if he intends to pay to replace it (contrary
to our answer above).
The reason for our answer above is because in our case, where there would
be a considerable loss of money to Reuven if he would not break the lock,
we may even venture to say that if Reuven buys only a lock of _equivalent
value_ before breaking in, he would still be permitted to do so. The
Mishna in Bava Kamma (114a) discusses the case of a beekeeper whose bees
(which are expensive) have taken flight, and have taken up residence in a
little hut (which is inexpensive) belonging to his neighbor. The only way
for the beekeeper to retrieve his bees is by moving the entire hut onto
his property, since, if he would try to move only the bees, they would
just fly off again. There is disagreement there in the Mishna between
Rabbi Yochanan Ben Berokah and his son, Rabbi Yishmael if the beekeeper is
permitted to damage the neighbor's hut by uprooting it and transporting it
back to his own property without explicit permission from the neighbor.
The Rema (Choshen Mishpat 274) quotes both opinions, and does not say
which we should follow.
It would seem that our case is very comparable to the case of the
beekeeper, in that, at least according to Rabbi Yishmael, he may damage
his friend's property to save himself from a loss as long as he intends
to pay. We might even be able to argue that even according to Rabbi
Yochanan Ben Berokah who does not allow the beekeeper to uproot his
friend's hut without permission, this is because the friend will have to
go and collect the money and rebuild the hut again, something that he has
no interest in making the effort to do. In our case, if Reuven would
have an identical lock ready to replace the one that he will break, none
of the owners of the lock are losing money nor will they have to make any
effort to fix the damage done. They will have no loss at all, and Reuven
will be saving himself from great loss. It would seem that all would
agree that the other residents would be required to permit Reuven to
break the lock and retrieve his items from storage, based on the principle
of Kofin Al Midas Sedom - we force people to give up certain rights in a
case where someone else will benefit and they have no loss from this.
(See Business-Halacha Vol. II No. 23 Midas S'dom / Traits Of The
Sodomites. To retrieve that class, send a message to majordomo@torah.org
containing the following: get business-halacha business-halacha.981104 .)
However, if Reuven would acquire a lock on behalf of all of the building
residents that is of _greater value_ than the lock on the storage room
_before_ breaking it, he would be permitted break it according to all
opinions. This Halacha is stated in the Rosh in Bava Kamma (Perek
HaKonais 12), and in the Shulchan Oruch (Choshen Mishpat 359:2). Since it
is a Zechus (benefit) for the residents to have a better lock, he can
acquire it on their behalf, based on Zochin L'Adam Shelo B'Fanov -
something beneficial can be acquired for another person even without
their knowledge and consent. Consequently, by breaking the lock of lesser
value and immediately replacing it with a lock of greater value, no
damage has been done.
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an
Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
and approval. His columns have recently been compiled and published in a
three volume work called Mishpetei HaTorah, which should be available
from your local Sefarim store.
Feedback is appreciated! It can be sent toatendler@torah.org.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
and approval.
We hope you find this class informative and stimulating! If you do not see a subscription form to the left
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!
