May a person use another person’s property without the owner’s knowledge and permission when his intention is to return it to its original place when he finishes using it?
What would be the Halacha if the person using the property is absolutely certain that if the owner would know that he is using it, he would wholeheartedly give him permission to do so?
- A. It is absolutely forbidden to use another person’s property without his permission, even if no damage or wear and tear would result from its use. One who does so is a thief (Gazlan). This is true even if the item is being used at a time when the owner does not need it. (1)
- B. A person should not take food or other items that will be wholly or partially consumed, if he does not have express permission from the owner to do so. This is true even if he is sure that his friend will not mind when he finds out.
However, if someone desperately needs a certain food or item, and he is absolutely certain that if the owner would know that he needed it, the owner would give him permission to take it, he may rely on those who are of the opinion that in this situation he may take what he needs without permission. (2)
- C. If the item in question will not be consumed or damaged in any way, and the user is sure that the owner would gladly give him permission to use it because of the wonderful relationship that they have, and he has evidence to this because the owner has in fact lent the item in question or items of similar value to him in the past, he may use it. However, if it is possible to get express permission from his friend to use it, he must do so.
If it is well known that the owner allows everyone to use this item without asking permission, anyone may use it. Similarly, a person may use an item that belongs to his friend for the sake of performing a Mitzvah, such as his Tallis, his Lulav and Esrog, or his Siddur.
This is only permissible if the owner does not need it at the time that others wish to use it, and the item will not be consumed or lost in any way. Additionally, after using it, he must return it to the place from which he took it.
- D. If it is customary to eat something that belongs to others without asking permission, it is permissible to do so. For example, if a friend invites you to his parent’s home and offers you some food, although he may not technically be the owner of the food, it is not necessary to wait for his parents to come home and give permission for you to eat the food. Since it is customary to allow family members to serve their friends, it is considered as if they have given their permission. (4)
(1) The Gemara in Bava Metziah (43b) states that it is forbidden to use your friend’s item without permission, even if you return it after use to where you took it from. One who does so is called a Gazlan. This is stated as the Halacha in the Shulchan Oruch (Choshen Mishpat 359:5). If it was taken without permission, the taker must immediately return the item to the owner, just as a thief has an obligation to return what was stolen. The particulars of how to return it (e.g. does the owner have to know that you’ve taken it, what to do if the owner is nowhere to be found) are discussed in the Shulchan Oruch there (355:1).
(2) Tosafos in Bava Metzia (22a D”H Mar Zutra) state that it is forbidden to take food from a friend without his permission, even if you know that the friend will be agreeable to this when he finds out. The reason for this is because the Halacha is “Yiyush Shelo MiDaas – Lo Havi Yiyush”. This is a concept borrowed from a situation where something has been lost without any identifying marks, and although if the owner would know that it has been lost he would give up hope of finding it, as long as he does not yet know that it has been lost we can not say that he has given up hope, and that the finder may not keep it. Similarly, in our case, we can not say the that the owner of the food has given permission, if he does not know that his permission must be given. Just because we know that he _would_ give permission if he would know, does not mean that he has granted permission! The Hagaos Ashri and the Mordechai (Siman 425) state that this is the Halacha also. See also the Ketzos HaChoshen (358:1).
However, the Shach (Choshen Mishpat 358:1) and the Sefer Machane Ephraim (Hilchos Gezeila Siman 2) disagree. They argue that the concept of “Yiyush Shelo Midaas…” is not applicable here. The only time we say that the owner has not given up hope if he does not know about it is in a case where something has been lost. This is because hope is lost involuntarily, the owner has no desire to give up on his property. However, if we know that the owner would be willing to allow his friend to use his property, it can be considered as if permission has been granted even though the owner doesn’t even know that the friend wishes to use it. Therefore they argue that even if the item will be consumed it is fine for the friend to take it if he’s absolutely sure that the owner would not mind.
Since this disagreement is regarding the Torah prohibition of theft, a person should be stringent not to take the item without express permission from the owner even if he’s sure that the owner would not mind.
It should be noted that if the amount that will be consumed by his use will be negligible, and people are not generally concerned about this amount, it should be considered an item that is not consumed by his use, as discussed in Answer C. For example, a person may borrow his friend’s pen for a few minutes if he’s sure his friend won’t mind, since the amount of ink that will be used is negligible.
(3) The Rashba (quoted in the Shita Mekubetzes Bava Metzia 22a, and in the Ran there D”H Ameimar) states that any time that it is known that people are not customarily Makpid (restrictive), that others not take their food or items, it is permitted to take them. The Ran there concludes that this is the custom. In such cases even Tosafos agree that it would be permitted, and only where the question is whether a specific person would allow his guest or friend to eat and consume his property do they argue that it should not be allowed without express permission. Items that everyone allow others to use may be considered as if express permission has already been granted.
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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.
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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!