Book & MP3 Player Borrowing
PDF
Fifteen year-old Elisheva Berkowitz borrowed a gripping novel and a pink Sony 16GB NWZ-E385 Series Walkman MP3 Player from her neighbor Mrs. Elbaz.
Mrs. Elbaz went out of town for a few days .
Elisheva invited Ayala, her new classmate from Los Angeles, to her home for the weekend.
Ayala wanted to read the book and listen to the Sephardic music on Mrs. Elbaz's mp3 player.
Ayala began reading the book and simply couldn't put it down. She begged Elisheva if she could take it back to the dorm with her on Sunday so she could finish reading the tale.
What's the Law?
The Answer:
See Detailed Explanation
Detailed Explanation
One who "borrows" without permission is considered a thief [Choshen Mishpat 359: 5].
A borrower may generally not lend out the borrowed article [Choshen Mishpat 342:1].
One who borrows, lends, or consumes of another's property without permission and then subsequently received permission, still stole (and must do Teshuva) [Choshen Mishpat 358: 4, Shulchan Aruch HaRav Hilchos Metzia 4].
It is sufficient to receive implicit permission from the beginning to permit one to use another's property without explicitly asking beforehand [Yoreh Deah 248: 6].
Examples of implicit permission often include:
- Pattern of lending similar objects to borrower (or secondary borrower) [Kesef Mishna Hilchos Sechirus 1: 4].
- For mitzvah fulfillment with minimal risk of damage/loss [Orach Chaim 14: 4, Magen Avraham 10, Shu"t Chasam Sofer O.C. 2].
- No risk of damage/ loss/ inconvenience /uneasiness [Teshuvos HaRashba see Choshen Mishpat 342 Rema].
Exceptions to these examples often include:
- Reason to believe that the owner may need the item at that time [Nimukei Yosef Bava Basra 42b].
- Indicators of owner being particular even simply about asking permission before use [Aruch Hashulchan 14: 11, 12].
What are the legal ramifications of deeming the shoel shelo mida'as a thief?
|
|
Borrower
|
Thief
|
|
1.
|
It is sufficient for a borrower to return the borrowed item to the place from where he/she borrowed it.
Once the borrower effectively returns the article, he/she is absolved from any subsequent damage or loss to the item
|
A thief however, must return the item to the victim, and if the victim became aware of the theft, the thief must ensure that the victim becomes aware of the return.
So long as he thief has not done so, he/she remains liable for damages or losses
|
|
|
| |
|
2.
|
A borrower is exempt from compensating the owner if the borrowed article broke due to normal usage [מתה מחמת מלאכה]]Choshen Mishpat 344: 1]
|
A thief must compensate the victim for the value of that the stolen object was at the time of the theft [Choshen Mishpat 360: 1].
Understandably there is no dispensation if the article broke because of normal usage
|
|
|
|
|
|
3.
|
A borrower must return the actual borrowed article even if the object changed drastically in the interim (i.e. a small sheep grew into a large sheep.)
|
If the article changes in the interim, a thief pays the victim the value that the article was at the time of the theft [Choshen Mishpat 360: 5].
|
|
|
|
|
|
4.
|
The Torah exempts a borrower from paying for damages or losses if the owner was servicing the borrower at the onset of the borrowing term [Choshen Mishpat 346:1]
|
A thief is liable for damages or losses even if the victim was initially servicing him/her [see Choshen Mishpat 346:1 Ketzos Hachoshen 1]
|
|
|
|
|
Application:
Arguably, we can assume that Mrs. Elbaz did not give explicit or implicit permission for Elisheva to lend her belongings to Ayala, a girl whom she did not know. A Sony 16GB NWZ-E385 Series Walkman MP3 Player presently (May 15 2016) sells for roughly $100.
We will assume that there are risks of damage to the hardware and/or deleting recorded material that would cause Mrs. Elbaz to be particular about Elisheva lending the mp3 player to an unknown girl even if Elisheva is around.
Even if after Mrs. Elbaz returns she tells Elisheva that she may lend the player to Ayala, at the time, Elisheva did not know, and Mrs. Elbaz did not know that Ayala was using it. Thus, at the time, both Elisheva and Ayala stole.
Similarly, Elisheva may not allow Ayala to take the book back with her to the dorm. We understand that Mrs. Elbaz trusts that the book will be guarded properly in Elisheva's home and we have no indication that she would allow Ayala take it to the dorm.
However, as long as Ayala acts responsibly, she may read the novel in Elisheva's home. Arguably, this is an example where there is no risk of damage/ loss/ inconvenience /uneasiness. If this is indeed the case, Ayala may read the book in Elisheva's home.
Could Elisheva allow Ayala to read books on a kindle that she borrowed from her Aunt Chavi?
