Yossi and Ezra shared an apartment. They had many things in common, which made them good roommates. One thing they shared that sometimes caused problems, though, was identical cell phones.
Yossi was rushing home for Yom Kippur; he had to catch a train. He packed up quickly, stuffed his wallet in his pocket, and headed out. He locked the door and started downstairs.
Before leaving the building, he reached into his pocket to check that he had taken his cell phone. He didn’t find it and realized that he had left it in the apartment. He ran upstairs and grabbed the phone, which was sitting on the table, and headed back down.
On the way to the train, Yossi was confronted by some thugs, armed with knives. “Give us your wallet,” they demanded. Yossi complied.
“Give us your phone also,” they demanded. Yossi gave it to them and they ran off.
Yossi continued on, shaking, to the train. When he got home, he immediately cancelled all his credit cards.
Shortly afterward, he received a phone call from his roommate, Ezra, on the house phone. “You accidentally left your phone in the apartment,” said Ezra. “And I can’t find mine. Did you take it by mistake?”
“You’re kidding!” exclaimed Yossi. “Did I really take your phone?!”
“It seems so,” said Ezra. “Haven’t you tried using the phone since you left?”
“You’ll never believe what happened,” Yossi said. “On the way to the train I got mugged! They took my cell phone; I guess that means yours is gone.”
“Wow! Sorry to hear,” said Ezra. “Are you OK? What else did they take?”
“Baruch Hashem I’m OK,” replied Yossi. “Just a bit shaken. They also took my wallet; I had to cancel all the credit cards. Really sorry about your phone.”
“What should I do with your phone?” asked Ezra.
“Use it meanwhile,” said Yossi. “I guess I’ll have to buy you a new one after Yom Tov.”
“It’s not your fault,” said Ezra. “You were mugged.”
“Still, I took your phone without permission, and it’s gone,” said Yossi. “It’s my responsibility, isn’t it?”
“I’m not convinced you’re liable,” said Ezra. “I suggest we raise this with Rabbi Dayan when you return.
After Yom Kippur, Yossi and Ezra met with Rabbi Dayan. “Am I liable for Ezra’s cell phone?” Yossi asked.
“There are a number of factors to consider here,” replied Rabbi Dayan. “A thief is liable for the stolen item, even if subsequently lost through uncontrollable circumstances. Thus, had you knowingly stolen Ezra’s cell phone, you would be liable even if lost later through armed robbery.” (See C.M. 303:3; Nesivos 182:2; Pischei Choshen, Geneivah 4:5[18])
“What difference does it make, then, whether I knowingly stole the phone or by mistake?” asked Yossi. “Either way, I took Ezra’s phone without permission! Doesn’t that make me liable?”
“There is an extensive discussion about this in the achronim,” said Rabbi Dayan, “whether someone who mistakenly stole is considered a thief.”
“I don’t understand,” said Yossi. “Whether someone stole on purpose or by mistake – he has to return the item if it’s not his!”
“Of course; there’s no question about that if the item is intact,” responded Rabbi Dayan. “The question is: Does the person have the liability of a thief when the item cannot be returned, such as in your case?”
“Oh, I understand,” asked Yossi. “So what is the halacha?”
“The Ketzos Hachoshen (25:1) addresses this question explicitly,” explained Rabbi Dayan. “He discusses the case of a judge who mistakenly handed money from the innocent party to the other litigant. He argues that the judge does not carry the liability of a thief if did not intend to steal.”
“But isn’t a person who damages liable whether he did so accidentally or not?” asked Ezra.
“Yes; the Gemara [B.K. 26b] derives from the verse ‘petza tachas petza‘ that even one who injured or damaged unintentionally is liable,” answered Rabbi Dayan. “However, there is no parallel source to impose the absolute liability of a thief on one who stole unintentionally.”
“You mentioned that there was a discussion about this,” noted Ezra. “Do other achronim argue?”
“Other achronim disagree in the case of the judge,” replied Rabbi Dayan. “There, when he mistakenly took the item, he willingly handed it over to another and it cannot be retrieved. They also argue when a person intends to acquire a new item for himself, mistakenly thinking he had permission to do so. However, if the person had no intention of acquiring the item – in other words, he thought it was his already – and it was subsequently lost through uncontrollable circumstances, many exempt him from liability.” (See Nesivos 25:1; Machaneh Efraim, Gezeilah #7)