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Shabbat Parashat Pinchas| 5766
Ask the Rabbi
Question: May I borrow my friend’s property without permission if I am confident that he would let me do so?
Answer: This is an important question. Adherence to every halachic nuance is as important in day-to-day monetary and personal relations as in the most famous ritual laws.
The matter starts with the sugya of yeiush shelo mida’at (lost hope without knowledge) in Bava Metzia 21b-22b. One loses an object under circumstances that he will give up hope of retrieving it when he finds out. Can someone who found the object before the owner became aware keep it? The gemara tries to answer from the following story. Three rabbis visited Mari bar Isak’s orchard, and his sharecropper brought them fruit from the orchard. Mar Zutra refused to eat, because Mari was not there to give permission, although he clearly would have wanted the honored guests to have them. Thus, we see that we follow that which one did authorize, not what he would have authorized. Tosafot (ad loc.) says that the other rabbis agreed with Mar Zutra in principle but assumed that the sharecropper had given them from his own portion, thus, this approach is halacha.
Others disagree with Tosafot. The Ran (ad loc.) cites the Rashba, that when one can assume that the owner would be happy to share his food with certain guests, it is permitted to give them. He cites Talmudic precedents where we assume that a homeowner has in mind to authorize others to give on his behalf. The Shach (358:1) makes a distinction between this case and yeiush on a lost object. A person would prefer not to have yeiush. Therefore, only if he actually loses hope does he lose the object. In a case where the owner would want to share with his unknown guest, he may partake without the owner’s knowledge.
There is not a consensus among today’s poskim on which position to accept. Thus, it is better to refrain from taking a friend’s object without permission. This not only applies to food, which is eaten and lost to its owner. Paying later mitigates but does not erase the fact that according to Tosafot, the action was theft (excuse the harsh term). Even in regard to objects that can be borrowed and returned, one who borrows without permission is a thief (Shulchan Aruch, CM 359:5). However, we cannot condemn one who relies on the Shach’s leniency and, at best, can teach those who would want to know that there is a dispute on the matter.
In certain cases, one may clearly take things without the owner’s permission. One can give blanket permission, which may be assumed for some neighbors and for guests during their stay. It is permissible to use an object of so little value that owners generally do not care if anyone uses it (Pitchei Choshen, Geneiva 1:15). If a responsible member of the household gives one an object under normal circumstances, one can assume that he has explicit or tacit authority to make such a decision on behalf of the household head(s). For that reason, tzedaka collectors may accept modest donations from older children at the door without knowing the family situation (based on Bava Kamma 119a). In a setting in which it is clearly accepted for people to borrow certain things without permission, one can assume that it applies to any given person. For example, in many yeshivot there is a policy of borrowing another’s sefarim for short periods of time. If a talmid does not want people to borrow his sefarim, he should note that in writing to save others from unknowing sin. Regarding borrowing articles used for mitzvot, it depends on the article and other factors, which likely change based on time and place, and the matter is beyond our present scope.
Let us caution the borrower. It is wrong to assume: “I would give him, so he would give me.” People have different natures and upbringings. On top of halachic concerns, many relationships among siblings and friends have been strained by incorrect assumptions of this sort. As it says in Pirkei Avot: “’Mine is yours, yours is yours,’ that is a righteous person.”
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