Mr. Klein lived in a very small apartment crammed with belongings that he had amassed over decades. Among them was a dining room set that was old but in good condition.
One day, he approached his neighbor, Mr. Gross, who had a spacious garage, and said, “I’m renovating and don’t have room to store my dining room set. Can you keep it in your garage for a while?”
“I’d be happy to,” Mr. Gross replied.
A few weeks later, Mr. Gross called Mr. Klein and said, “Your table and chairs are taking up a lot of room. What’s happening?”
“I’m going to buy a new set, so you can chop it up,” said Mr. Klein.
Later that evening, Mr. Klein thought he might want to give his old dining room set to someone and quickly called Mr. Gross. “Please don’t ruin the set,” he said. “I might give it to someone.”
The following day, though, Mr. Klein saw his dining room set outside, broken into pieces. When he confronted Mr. Gross, the latter said, “Once you said I could chop it up, I had permission to do so. It doesn’t matter if you later changed your mind.”
The two decided to consult Rabbi Dayan. After hearing both sides, Rabbi Dayan said, “The Mishnah [Bava Kamma 92a] states that if one tells another to ruin an item of his, the second person is liable for damaging it unless the owner specifically stated or indicated that he would be exempt (al m’nas liftor).
“The Gemara [Bava Metzia 93b] explains that this rule applies when the owner initially entrusted the item to the other person for safekeeping. Therefore, the person remains liable unless the owner specifically exempted him” [Choshen Mishpat 380:1].
“However, if the second person was initially given the item to ruin, he is not liable for damages even if he wasn’t told he would be exempt,” continued Rabbi Dayan. “The Gemara derives from the words ‘to guard’ Shemot 22:6] that a guardian is liable only for an item entrusted to him for safeguarding, not one handed to him to tear or destroy.
“The commentators understand from the Gemara that the second person is especially exempt if he never accepted it into his hands and the owner told him to ruin it, even if the owner did not specifically state that he would be exempt” [Tosafos and Rashba, Bava Kama 93a; Yam Shel Shlomo, Bava Kama 8:68; Pischei Choshen, Nezikin 1:15].
“What’s the rationale behind these rulings?” asked Mr. Klein.
“Tosafos, Sma [380:3] and Shach [246:9] seem to say the person is exempt because of mechilah,” answered Rabbi Dayan. “Nonetheless, when the item was entrusted for safekeeping, we assume the owner was not sincere in exempting the guardian if he ruined his item; he was just placating him so he wouldn’t be concerned about being a guardian.
“Ketzos [246:1] and Nesivos [246:5], though, explain that the exemption is not based on mechilah, but rather that damage done with the owner’s permission is not considered damage at all! Nonetheless, when the guardian was initially entrusted to guard an item, he needs explicit exemption to be relieved of this responsibility.”
“Can the owner retract?” asked Mr. Gross.
“Even if an owner gave permission to someone to ruin an item and explicitly exempted him from payment, the exemption does not take force until the damage is done,” answered Rabbi Dayan. “Therefore, the owner can retract his permission to destroy, and if someone subsequently damaged the item, he is liable” [Maharit, Choshen Mishpat #118].
“Thus,” Rabbi Dayan concluded, “since Mr. Klein retracted his permission to chop up the dining room set, Mr. Gross is liable for destroying it.”
