Rav Avi: Welcome to Responsa Radio, where you ask and we answer questions of Jewish law in modern times. I'm Rabbi Avi Killip, speaking with Rabbi Ethan Tucker, Rosh Yeshiva at Mechon Hadar, a center for higher Jewish learning based in New York City. Okay, this question is in a category that I like to call "workplace halakhah," although we could adapt it very easily to call it "dorm room halakhah," or really any kind of interpersonal shared space halakhah. Here we go: "What are the guidelines on borrowing things from people without their permission? For instance, may I borrow a coworker's pen or use their stapler without their knowledge? Can I borrow their mug? If there's something wrong with this, what exactly is the prohibition?"
Rav Eitan: Alright, this is a great one. I'll tell you why this is a great one: because it's a question that quite frankly at first sounds like it's so over the top. Right? I think a number of us may have a strong instinct to say, what, you crazy? Like, of course you can borrow a person's mug, of course you can use their pen to write something. But I wanna actually first salute the questioner, because I think there is actually something deeply Jewish and deeply halakhic about asking this question. I want to start, actually, from a place of aggadah, of narrative, of lore, to ground the more legal aspects of the answer that we'll come to.
If you think back to the story of Avraham when he's still Avram fighting the four kings who come in and invade the territory of Cana'an, and he defeats them and he returns after the battle to meet with one of the local kings, the king of Sodom, who's been saved by his military exploits. And the king of Sodom says to Avram, take all the property, all the property that you captured in this war, take it. And Avraham dramatically responds, basically saying I swear to G-d, if I take a thread or a shoelace from you, I swear I will not touch any of this property. And Rashi says there, what is he doing? He is essentially distancing himself in as extreme a way as possible from theft. He doesn't know where all this stuff came from, is the king of Sodom willingly giving it to him, he feels under pressure -- Avram wants nothing to do with walking away with any of this stuff.
In the Talmud, in Sotah, Rava says Avraham's reward for saying I will not take a thread nor a shoelace was that his descendants merited two mitzvot -- the thread of techelet, the blue thread on the tzitzit, and the strap, the leather strap like the shoelace, of tefillin. And it's a very powerful statement which essentially says the things that Jews dress themselves in every day are essentially a constant reminder of the fact that their ancestor refused to go anywhere near anything he thought was even remotely the product of theft, even in this case if it had actually been offered to him. So I want to salute the questioner by being kind of hypersensitive to this, because even if we come to a kind of reasonable answer, which I'm gonna suggest, it is worth being hypersensitive about other people's property and how we do or don't use it.
Rav Avi: That's really powerful.
Rav Eitan: So, alright. Let's get down to brass tacks here. A couple of dimensions -- maybe we'll just kind of take a minute to talk about them one at a time.
Rav Avi: Brass staplers, as the case may be.
Rav Eitan: Brass staplers, very nice. The implicit question behind the question is, aren't there some things that are too small to steal, right? Might there be things that they're just not worth enough that you would be able to take them? And in fact it seems like that's not true. Meaning, there doesn't seem to be a minimum limit on the prohibition of theft. Sure, culpability and do you have to pay it back and all of that, but Talmud in Sanhedrin seems pretty clear that Rav Papa says in the discussion there that even a pachot mishaveh perutah, even something that's worth less than a perutah -- in today's monetary terms we're talking about something between a penny and a nickel -- even something under that threshold, though it's insignificant, is part of the prohibition on theft. Okay?
Rav Avi: So I can't even take your post-it note?
Rav Eitan: It would seem from that you can't take my post-it note because it doesn't cost a lot of money. However, there is a passage in the Talmud Yerushalmi which tells a story about rabbis walking together in various fields. One of them, they sort of walk along and they come to a vineyard, and there's a fence around the vineyard. And one of the rabbis says to his colleague, hey, can you pick me off a little piece of wood from that fence that I can use as a toothpick? Just a tiny little piece, a splinter of wood. And then a moment later, he kind of doubles back on himself and says no no no, don't give me anything. I take it back, because if every person who walked by this fence did that, the fence would be gone.
Rav Avi: I love that! That's actually, it seems like a perfect parallel to the post-it note, where I could take one and then the next coworker could take one, and the next coworker could take one, and, you know, the person who went on a week's vacation could come back with no post-it note stack at all.
Rav Eitan: Yeah, it's a fantastic example, right? You've got, you know, on the one hand something that's worth very little, and on the other hand repeated encroachments on it will actually lead to something more significant and certainly extremely annoying for the person who no longer has any post-its. And this is exactly captured by the Rashba, who commenting on another passage, says what we learn basically from the Yerushalmi is two things. One, that technically there are certain items that are kind of conventionally assumed to be so worthless that people kind of assume that other people might take them. In other words, he takes from the rabbi's initial instinct to rip a little bit of wood off the fence that no one who has a fence really cares if a little splinter is picked off it, and therefore we can actually generalize from that to say there's all kinds of de minimis objects that lie around in the world where there's almost like an implicit social contract of yeah, no one really cares about that, and you can take it and it's not theft.
But on the other hand, what we learn from the rabbi's kind of retraction of the instruction to take that is that in the Rashba's world there is a midat chasidut, there's a kind of standard of pious behavior, which recommends not doing that when it seems like if iterated, that would lead to someone's stock of something being depleted, their fence coming down, or the post-it notes disappearing.
Rav Avi: You know, we're talking on a practical level about a toothpick or a post-it note, but I think we could really zoom out and on a macro level say that it's a requirement of an awareness of your role in a broader system, that you're not culpable only for your own personal behavior, but your personal behavior as it fits in with the whole system of people who are behaving in a certain way, and that you as the individual are actually responsible for thinking about the whole system and then applying that to your own personal actions.
Rav Eitan: Yeah. There's a kind of Kantian categorical imperative here applied to property law, you know, and sort of de minimis theft, and you gotta kind of think that through. Exactly, what's your effect on it? So I guess on piece one, what I want to say about it is the fact that something costs so little is not automatically an excuse to allow you to take it from someone else. It's not like you can just walk off with people's pennies that are sitting on their counter. But there are things like a post-it note, I think, where there might be an assumption that yeah, everyone kind of assumes that you might take a post-it note, particularly, let's say, in an office -- the question asked specifically about a coworker -- where it's not even necessarily that person's post-it note, it's kind of the company, the organization has bought a whole bunch of things, this is on their desk, and there's sort of an assumption, yeah, those might float around, they're not my personal thing.
And yet, on top of that, still being conscious of is this the kind of situation where it'll be a one-time taking of something that's really insignificant, or will it lead to a pattern that will ultimately minimally inconvenience that person and potentially deplete them of a scope of resources they never signed up to, you know, be deprived of?
Rav Avi: Yeah. I think another example of the entirely socially acceptable to take category is a tissue out of a tissue box, that nobody ever thinks, oh, am I stealing if I took the tissue from your living room.
Rav Eitan: Yeah, that's right. Yet as anyone who's ever had a horrible cold knows, if you feel like those tissues run out sooner than you were counting on it, that is extremely irritating. So I think it's a great example of this. Alright. Let's -- I think to underscore the point that it's not just about monetary loss but it's sort of about convention, what about borrowing without permission? And here I have to say it's kind of shocking to confront this -- the Talmud features Rav Sheshet saying that if you take, let's say someone has a barrel lying around, and you take that barrel because you want to use it to transport something on top of it, right? You, like, need the surface, and this is like the useful flat surface lying around -- that is considered an act of theft. And he says explicitly, shoel shelo mida'at habealim gazlan haveh. Someone who borrows something without the knowledge of its owners is a thief.
Rav Avi: And that's even if you return it.
Rav Eitan: Okay. So, here's the thing. The local context there and in the few other places in the Talmud where this comes up is very clear that it's really about them being responsible if something happens to that object. Meaning, you're a thief in the sense that by picking up something that wasn't yours without permission, you incur responsibility for any damages that result, and in that sense you're a thief because it has sort of transferred to your domain, and then you'll have to pay back if the thing breaks. It's not clear that the Talmudic texts themselves are actually saying you have violated the prohibition on stealing by borrowing it, right? I think intuitively when I read a text like that I think, okay, basically you're allowed to borrow something from someone else if you get away with it. Right? But if you don't, you have to understand you'll have to pay it back.
But fascinatingly, the Tur in the Middle Ages says about such a person who borrows without permission, nikra gazlan, they are called a thief. And the Shulkhan Arukh actually adopts that language, which seems to forbid at least as a general rule borrowing without permission. Again, we could control for things that are so small or so assumed to be kind of communal property, and I think most things in an office probably qualify for this, but as a principle, the idea is when something belongs to someone, they -- part of their right to that is they have the right to be checked in with before you take it.
Rav Avi: Yeah, the example that we have here in the question is a mug, can I borrow their mug, and I feel like that's a perfect example of if you go to your desk and the mug is there and someone says, by the way, I used it yesterday, you're like, okay, I don't really care. But if you go to your desk and your mug's not there, even if they return it tomorrow, you're gonna feel outraged that they took your property without consulting you.
Rav Eitan: Yeah. With one big caveat.
Rav Avi: It's like it's stealing in that in-between time before you returned it.
Rav Eitan: That's right. There's one big caveat to what you said, which I want to come back to in a minute, which is of course, how much of a germ freak the person is.
Rav Avi: Interesting.
Rav Eitan: And how much one has to take that into account. We're actually gonna come back to that. There's an amazing germ freak source before we get done here. But here's sort of the counter-principle. The counter-principle is this really interesting idea, which is based on a Talmudic passage in Pesachim, that a person likes or it's sort of presumed that a person wants their money to be used to fulfill a mitzvah. Talmud talks about this in a context of, like, checking for chametz, did you pay for it, did you get an apartment that wasn't checked -- there's all kinds of details there.
But it generates this principle which opens up a whole line of analysis when borrowing things from people, to say well if what I'm doing with it is a mitzvah, surely they would agree to this and I don't even have to ask them. So here's the classic case. The Nimukei Yosef says in a place where it's common practice for people to leave their tallitot in shul, if someone walks into the shul and doesn't have a tallis, and they want to wrap themselves in it, just for a short period of time, to fulfill the mitzvah and then put it back where they found it, that is allowed. That is not considered a violation on borrowing without permission, which is normally a kind of theft, because you're not using up the tallit in any way -- like, it's the same tallit before and after, let's say like the mug, right, unlike the staple where you're using a stapler or a pen where you're using some small amount of ink -- here you're actually not changing the object at all. And because it's for a mitzvah, we can presume the person definitely wants that to happen.
But, he says, you cannot assume that about someone's books, because why? You might end up reading for a long time in the book and tearing it. And since there's a risk in reading the book of ruining it, you must get their permission, whereas the tallit, you're just gonna put it on and then put it back. This gets to another level then, where some people say oh, but that's only true if the tallit was kind of lying around, sort of splayed over a chair, but Rabbenu Peretz says if the tallit was folded up on the table, then you can't take it, because then presumably the person, by folding it up, has indicated I've put this away, and I don't want anyone to use it, to which, then, the Mordechai, a later commentator, comes back and says yeah, it seems to me that as long as you re-fold it, it should be fine.
And that's actually where the Shulkhan Arukh comes out, which is interesting: it says if you find a tallit, you are allowed to take it without permission as long as you fold it back up to the way it was. And the Ramah says the same is true for tefillin -- you find a pair of tefillin lying around, certainly anyone who owns a pair of tefillin can be presumed to want a person without tefillin to have access to them.
Rav Avi: It's a nice image of a community where people are so invested in the mitzvot of others that they definitely, you know, think of these objects as something they would definitely give to other people. I hope that that's true in our communities.
Rav Eitan: Yeah, there's a kind of, like, ethos of sort of a team effort here, which I actually think is a nice connection with the office coworker. There's a sense here of the more that you think that the thing you're about to do with this object is something that basically this other person is a kind of shared participant in, it's a kind of co-enterprise with them, then the more licensed you are to presume that they would totally allow you to do this. And the more it's just something you're doing for your own benefit, that has no connection to a shared project, the more you gotta have hands off.
Rav Avi: Yeah. And I'll say, I've actually known that, the detail about books being specifically different, and I always thought that was a little extreme, to say I can't go and pick the dictionary up off your shelf, and I'm sure that it's something that I've done, especially being a part of so many batei midrash, so many different schools where I probably needed a dictionary and grabbed somebody else's. But I will say that having young children makes me very aware of the fact that books are more fragile than other items that may be borrowed. So that's become a lot more logical to me recently.
Rav Eitan: Yeah. I think the other thing we have to remember is the Nimukei Yosef is also writing before printing, so sefarim are also in that sense a much more precious item, they're not just --like even a book today obviously can be expensive and can be a very precious object, but all the moreso if it's a handwritten scroll that you're worried will get damaged.
Rav Avi: Ah, so true.
Rav Eitan: Your instinct is right, and it's actually really interesting beyond what we can talk about here -- the Pri Megadim, a later commentator, actually says, but you know, I see that in shul, everyone borrows everyone else's siddur. They take it all the time, and he says I don't really know why that's permitted, but there's some sense there -- I think he doesn't have the legal language for it, but there's some sense -- I like your beit midrash example -- where someone might say, look, if you bring your books into a beit midrash, you are sort of signing onto a communal culture of learning, and at that point we presume you don't mind having your book used.
I don't know if that's true, but that I think is probably the instinct of people who use it, and that is clearly what was going on in these Jewish communities, where people would say yeah, I understand it's your siddur, it has your name in it, but it's in the synagogue, and that means if you didn't take it home, you're open to people using it when they need it.
Rav Avi: That feels to me actually a very logical application of the tallit that was folded or not folded on the table. You know, or in the workplace example, I would say you used my stapler that I left in the conference room, is very different than you used my stapler that I left on my desk, is very different from you opened my personal drawer, you know, opened my personal pencil box, took out my stapler, and used it. Those would feel like very different activities.
Rav Eitan: Yeah. I think that's right. I think that's right. So here's the last source I want to reference here, which as I promised is the germ freak source.
Rav Avi: I'm excited.
Rav Eitan: It's really interesting. It's by the Tzitz Eliezer, Rav Eliezer Waldenberg, great posek in Israel in the past century. And he has the following twist on what we've been talking about. He talks about, what about a sick person in the hospital who goes to the beit knesset, right, an Israeli hospital that's got a well-stocked synagogue, and he goes in there and finds a tallit and tefillin on the table. And he can tell very clearly they're not communal tallit and tefillin, meant there for anyone to use; this is clearly someone's tallit and tefillin. He's sick, he's in the hospital, he didn't bring his stuff, he doesn't have it there -- can he deploy the principle of just borrowing this person's thing, because of course they would want a mitzvah to be done with it? And he says two things that I think are fascinating.
The first thing he says is it may be that the Shulkhan Arukh's permission to borrow tallit and tefillin without asking only applies to a healthy person. And then basically goes on to talk about how people kiss their tzitzit and sometimes spit and mucus comes out onto them, there's people who when they put on tefillin they're very sweaty, and all of that gets on the straps -- and we know there are many people who are extremely sensitive to those things, and they don't even want someone putting on a tallit that they're gonna wear, and it's gonna make them feel totally gross, certainly if a sick person put them on.
And therefore, a sick person cannot presume that someone wants them to do a mitzvah with their property, because there might be some real cost to them. And unless they actually check in with the person to whom it belongs, they cannot make that presumption. Alright? So the first thing is, germs are real, people react to them, the presumption is not an iron law; it's just a presumption that's trying to do some sort of psyching out of human psychology, and to the extent we're aware that people get freaked out by germs, then we have to actually be sensitive to that and we can't permit you to just take their stuff.
Rav Avi: Yeah. I like that like many of the sources you brought for this, there's a sense of self-awareness that's necessary. If I wouldn't want me using this, if I wouldn't want somebody else with a cold using my tallit, then I probably shouldn't use yours.
Rav Eitan: Yeah. I think that's right. It's like, but here's what I would even say, that feels to me like that's a floor. Minimally, you want to think about, well, would I want this done to me? But then the Tzitz Eliezer says something else which I think pushes us to another level, which I find very powerful. He says, and I want to tell you, even this whole business in the Shulkhan Arukh where you're allowed to take it, it would seem, at least from a healthy person, I am very nervous about actually allowing people to do that, and authorizing them to do so. Why? There are many times where you ask someone whether they will agree to lend you something, and they actually only agree because they're worried that it's going to upset you if they say no, but not because they actually want to agree.
And he says that kind of implicit pressure where you are getting someone's official consent but they haven't really consented to it is a different kind of theft. There's a different kind of angle there where you are going through the motions of getting their approval, but actually putting them in an uncomfortable situation that they don't want to be in. And here the Tzitz Eliezer essentially, he doesn't say it black-on-white, but he essentially implies, you really should be avoiding borrowing stuff from people at all, because it is very hard to draw the line unless you know the person very well between a genuine authorization and some kind of agreement to consent under duress.
Rav Avi: That both feels so powerful and important, and at the same time sad. It makes me sad to think that we live in a culture where we don't get to share things.
Rav Eitan: Yeah. Well, how would you think it through? Is there -- I mean would you suggest, how would you draw the line. To the extent what he's talking about is true, or at least applies for some people?
Rav Avi: Yeah, what he's talking about is definitely true. I'm sure I've been on both sides of that, of asking for something where someone didn't really want to lend, and you know, a situation where you say to someone, can I borrow your car, and you kind of don't know if you want to give them your car, but you say yes just because you know it'll help them or you feel obligated to say yes in some way. I think that that's very real and very powerful, and yet I would rather come down on the other side. I would rather say it's okay to push someone to share a little bit more than they're comfortable sharing, that's gonna make society better, to push people to share a little bit more, as opposed to saying don't ask for things that you're not a hundred percent sure they want to share, I feel like that's isolating ourselves and sort of separating the culture unnecessarily. I don't want to live in a world where every person absolutely has to have their own siddur or else we don't get to daven, or we all have to own our own stapler. I'd rather it be reasonable to assume that I can borrow your siddur if I left mine at home and yours is here.
Rav Eitan: That's really interesting, because what you're raising here, which I never thought of before, is that part of what's also at stake here with, let's say, the Shulkhan Arukh saying a person, you know, likes to have their property used for a mitzvah, is is that a descriptive or a prescriptive statement? And I think someone like the Tzitz Eliezer is reading it as descriptive, and to the extent that it's not true in a given case, you can't rely on it. That is to say yeah, most of the time, people are happy to have their stuff used for a mitzvah, but the second that's not true because the other person's sick or there's pressure, then you can't rely on it. And what you're suggesting is, maybe the Shulkhan Arukh is in part making a prescriptive, almost socially constructive statement, which is to say no, like we assert, as a certain kind of presumption, that people are supposed to want other people to use their things for a mitzvah, because we want to live in a society where there's sort of, like, shared collective value around those things, and how much farther might we take that to kind of a general culture of sharing and being willing to have the things that you own privately be used for something that's important to someone else? I think it's a really interesting point.
Rav Avi: Yeah. Great. I think this question really opened up so much more than you might think about both our relationship with each other as human beings and our relationship with our own property and with the property of others. So thank you.
Rav Eitan: Thank you.
Rav Avi: Have a halakhic question you'd like answered on the show? Email us at halakhah@hadar.org. You can also leave us a message at (215) 297-4254. Responsa Radio is a project of the Center for Jewish Law and Values at Mechon Hadar, and is produced by Jewish Public Media, which creates, curates, and promotes excellent Jewish content.