By: Rabbi Max Sutton
Steven regularly rode his bike to camp and parked it at the bike rack on the outdoor grounds. One morning he arrived late and there was no space left at the bike rack, so he locked his bike to one of the other bikes. The campers were dismissed at 4pm, but that day Steven’s mother picked him up by car early, and he carelessly forgot to detach his bike before leaving. Charles, owner of the bike to which Steven had locked his, was forced to walk home.
Sometime later that evening, Steven remembered that his bike was still at camp, and made a special trip to pick it up, leaving Charles’s bike attached to the rack. The following morning, Charles’s bike was missing, presumably stolen overnight. Charles recognized Steven’s bike, and was able to identify its owner. He approached Steven claiming $1300 for the cost of his Trek Madone 2.1 cycle that was stolen. Steven responded that it is very acceptable to attach a bike to another, since everyone knows that there is not enough space on the bike rack for all the campers’ bikes. He explained that although he later took his bike, he had left Steven’s bike securely locked to the rack exactly how it was originally. Charles, however, claimed that his bike was stranded on the campus overnight because of Steven, and this ultimately caused
How should the Bet Din rule – in favor of Steven or Charles, and why?
According to the ruling of the Shulhan Aruch, a borrower is responsible for damages caused by accidental mishaps, and he is certainly liable in cases of theft or negligence. The liability of a borrower begins at the moment he physically takes the item into his possession. Lifting the item or dragging it into one’s domain are classic examples of the mode of acquisition required for a borrower to assume responsibility.
However, leading halachic authorities extend the liability of a borrower to include the mere usage of the item, even if he never brings the item into his physical possession. Operating machinery by simply pressing a button, or placing one’s personal possessions on another person’s work surface, is a form of borrowing, even though the borrowed item was never actually brought into the “borrower’s” domain. Usage of an item represents a monetary benefit which in turn yields liability for a borrower, and thus the borrower in these cases bears full liability for damages.
While nearly all halachic authorities agree with these rules, some distinguish between a borrower authorized to use an item and one who uses an item without permission. According to this view, only somebody who received permission to use an item assumes liability by simply using it. Unauthorized usage, however, constitutes halachic theft, and liability in cases of theft depends upon the item’s being transferred into the thief’s possession. Thus, while the first opinion holds a borrower liable when he uses an item with or without permission, the second maintains that in the case of unauthorized use, the borrower is liable for damages only if he took physical possession of the item.
There is a lengthy halachic debate concerning someone who uses an item without permission on the assumption that the owner of the item would have clearly given consent to its usage. Some rule stringently, prohibiting use of an item without explicit consent. In the view of these authorities, anytime one uses somebody else’s item without his authorization, he is regarded as a thief. Others, however, maintain that if it is clear and obvious that the owner would allow the borrower to use the item, then the consent is presumed and thus the borrower is regarded as a legal borrower. Although this issue is subject to debate among major halachic authorities, the commonly accepted ruling, as evidenced by over 700 years of documentation, follows the lenient position, allowing unauthorized use of somebody’s item if his consent can be presumed. Hence, one who uses an item without explicit consent is considered a borrower and is liable in cases of theft and other mishaps.
An application of this rule would be a situation of a day camp that does not have enough space on its bike rack to accommodate all the campers. Since the campers understand that they will need to attach their bicycles to their fellow campers’ bicycles, there is presumed consent, and it is thus permissible for them to use each other’s bicycles for this purpose without permission. In fact, it is likely that even those authorities who rule stringently, and forbid using somebody else’s item when consent is only presumed, would permit the campers to attach their bicycles to fellow campers’ bicycles in this case, given that this is the common, daily practice in the camp. As such, when a camper attaches his bicycle to a fellow camper’s bicycle, he is halachically considered a borrower, and thus according to all opinions, he should, seemingly, bear full liability despite the fact that he never brought the bicycle into his possession.
The Shulhan Aruch rules that when one borrows an item to perform with it a task worth less than a “perutah,” he does not bear liability for damages. Even if the borrowed object is valuable, nevertheless, if the task for which it was borrowed is so insignificant that its benefit is valued as less than the smallest coin of Talmudic times, the borrower is absolved of all liability. Hence, in instances in which a camper attaches his bike to another camper’s bike, he is not liable for damages. Since the camper had hundreds of bikes available to choose from at no charge, the benefit provided by the bicycle he chose has no market value. Although he made use of a very valuable item, nevertheless, the task he used it for is worth less than a “perutah,” and he is absolved of liability.
Shulhan Aruch Hoshen Mishpat 340:1;
Netivot Hamishpat 340:8;Imre Binah 17;
Shach, Hoshen Mishpat 358:1;
Ketzot Hahoshen 209:5;
Hiddushe HaRan, Baba Metziah 22a;Shulhan Aruch Hoshen Mishpat 346:10.
Verdict:Stranded for the Balance of the Summer
Our Bet Din absolved Steven of payment for the stolen bicycle. Although Steven did not receive explicit consent from Charles to attach his bike, he is not liable for stealing, since it is a commonly accepted practice that campers attach their bikes to each other. Therefore, Steven is considered a borrower, not a thief. However, although generally a borrower is responsible for theft, in this instance, since Steven used Charles’s bike for a purpose that has no market value, he is absolved from liability. With hundreds of bikes for Steven to choose from – all free of charge – the benefit he received from Charlie’s bicycle was clearly less than the Talmudic “perutah.”
It should be noted that one who indirectly causes damage to somebody else’s property is absolved of legally enforceable liability, but nevertheless bears a religious obligation – to Gd – to pay for the damage. Seemingly, then, Steven would be required to compensate Charlie for the financial loss which he indirectly caused. However, this obligation applies only if the indirect damage was caused intentionally. It therefore certainly does not apply in this instance, as Steven clearly had no intention to damage Charlie’s bicycle.