Rabbi Meir Orlean
The Siegels were celebrating their son’s aufruf. They had a small crowd, so they were going to cook themselves and eat the meal in the shul.
Their neighbors, the Kaplans, had a gemach of simchah items, which they would rent out for events.
“I’d love to get their simchah items, but the Kaplans are away for the month,” Mrs. Siegel said to her husband. “I tried contacting them, but haven’t been successful.”
“The items are in their garage, and we have a copy of the key,” said Mr. Siegel. “I could just take them.”
“Take the items without asking?” asked Mrs. Siegel incredulously.
“Why not?” replied Mr. Siegel. “They’re meant for rent, anyway.”
“I’m not comfortable with the idea,” said Mrs. Siegel, “but if you think it’s not a problem, go ahead.”
Mr. Siegel took an urn, three hotplates and some boxes of vases and flowers from the garage. He took them to the shul and set them up in the room where they were going to eat.
Mr. Siegel plugged in the urn. It heated for twenty minutes and then shorted. He tried another outlet, but the urn would not work. “It seems that something burned out,” Mr. Siegel sighed. He quickly borrowed an urn from another neighbor.
After Shabbos, Mr. Siegel placed the items on the curb to load into his car. Without warning, a branch fell from above, smashing the vases in one of the boxes.
When Mr. Kaplan returned, Mr. Siegel said: “We have some business to discuss.”
“What happened?” asked Mr. Kaplan.
“We took items for the aufruf from your gemach with intention to pay, but a bunch of things went wrong,” Mr. Siegel said. “The urn shorted and a branch broke while I was loading the boxes back into the car. I have to pay you for the urn and the vases of flowers, in addition to the regular rental fee.”
“It’s not really your fault,” said Mr. Kaplan. “It’s not clear to me that you have to pay.”
“I also took the items without permission,” insisted Mr. Siegel.
“They were intended for rent, though,” said Mr. Kaplan. “Let’s ask Rabbi Dayan.”
The two met with Rabbi Dayan. “Am I liable for the urn and flowers?” Mr. Siegel asked.
“The Gemara (B.K. 97a) addresses the case of a person who commandeered another’s boat,” explained Rabbi Dayan. “It concludes that if the boat was not intended for rent, he is considered a thief and liable for any damage to it, but not liable for rent. If the boat is intended for rent, the owner can demand either the rental fee or any damage due to usage, but not both, since a renter is not liable for damage due to normal use” (C.M. 359:5, 363:5; Sma 363:12).
“What is the logic that the owner has the option of charging rent or damage when intended for rent?” asked Mr. Kaplan.
“He can charge rent since the person benefited from the use,” answered Rabbi Dayan. “Alternatively, he can charge for the damage due to use, since Chazal treat the user partially as a thief, who is liable for damage, or perhaps like a mazik (Nesivos 308:4; Mishpat K’halachah, p.280).
“What about loss that was not from use?” asked Mr. Siegel. “The broken vases, for example.”
“Rema (C.M. 308:7), based on Terumas Hadeshen, rules that if the boat stands for rent, the person is not a thief,” replied Rabbi Dayan. “Therefore Acharonim write that he is not liable for external oness, only for damage due to use. If he were to take the boat against the explicit objection of the owner, some obligate him also in external oness (Ketzos 308:3; Chazon Ish, B.K. 20:4; Machaneh Efraim, Gezeilah #15; Pischei Choshen, Geneivah 7:5).
“Thus,” concluded Rabbi Dayan, “Mr. Siegel is not liable for the vase of flowers; he is liable for the urn, but does not have to pay rent for it.”