Detailed Explanation
Banana Split! implicates the
following two laws.
1.A victim will no longer look after an article that
he or she has learned of its theft. For example, if one notices that his
or her bicycle has been stolen, while he or she might not despair from
retrieving it, in the interim, he/she will no longer safeguard it from
suffering subsequent theft or damage. He or she will only begin protecting
the bicycle again upon learning that it was returned to his/her charge.
A
thief is liable for damages incurred to the stolen goods. The liability continues until the victim
knows to look once again after the stolen goods.
Thus,
if the victim noticed the goods were missing, the thief is obligated to notify the
victim of its return. Nevertheless, if the victim will easily realize its
return it is not necessary to notify him or her of its return. Similarly, if
the victim never knew the goods were missing, there is no need to notify him or
her of the article's return [Choshen Mishpat 355:1].
Note: One who returns a lost object need not
notify the owner. Instead, it is sufficient to return it to the owner's
protected area or to a place where the owner will see it soon thereafter
[Choshen Mishpat 267: 1].
2. One must make sure that his/her actions are
transparent and that they do not give over a suspicious impression
[Numbers 32: 22].
(Example:
The one who handled public funds in the Temple
did not enter the secluded vault wearing a garment with cuffs etc. so that no
one could accuse him of pilfering public coins for his own use [Shekalim 3:2].)
Application:
The H. family told the
cashier to ring up numerous vanilla yogurts. Inadvertently, they took banana
flavor instead. They must return the banana flavored yogurts. Yet, they are not
simply "returning a lost object". Instead, they were inadvertent thieves.
Therefore, if sufficient time
elapsed over which the owner realized an inconsistency in his/her books, or else
the storekeeper noticed the discrepancy through an accurate up to date tracking system, through which he/shecan monitor every item in the store, the "accidental thief" would be required
to notify the store of the yogurts' return.
If however, we can safely
assume that in a large supermarket, the storekeeper never knew that the banana
yogurts were missing, the "accidental thief" need not notify the storekeeper of
its return. The H family may pay for the eaten banana flavor and simply do a
switch without going through the run around. [This is all assuming that the
yogurts did not go bad in the interim].
However, before opting to do such
a switch, one must be wary of onlookers. Even if permissible according to the
letter of the law, one must be careful that his/her actions to not create
misgivings. The H's must be careful and super sensitive that their actions will
not raise eyebrows and give an impression as though they are taking merchandise
(vanilla yogurts) from the supermarket without paying for them. If they cannot
accomplish this, they must reconsider their plan of action.