Dani owned a motorbike, which he kept in his shed. One evening he found it missing. “What happened to the motorbike?” Dani wondered. “I hope it wasn’t stolen!”
Later that night he spied Benjy returning it. “Who gave you permission to use my motorbike?” Dani confronted him.
“No one,” acknowledged Benjy. “I needed the bike to get quickly across the neighborhood. I didn’t think that you wouldn’t agree to lend it, so I just took it.”
“That is totally unacceptable,” Dani reprimanded him. “It’s like stealing!”
“I apologize,” said Benjy. “I know it was wrong, but I really needed the bike.”
Dani looked at the motorbike. “I see that you also ruined it,” he said. “The handlebars are cracked, and the seat support is bent!”
“The bike is still usable,” replied Benjy. “I’ll pay you the loss in value or repair cost.” “No way!” said Dani. “You buy me a motorbike and take the broken one!”
“Buy a motorbike?!” exclaimed Benjy. “That’s a tremendous expense! I have no use for a motorbike on a regular basis.”
“That’s your problem,” insisted Dani. “You took it without permission and broke it. I don’t want a broken motorbike.”
“You can either repair it, or sell it and buy a comparable, used motorbike with the additional money,” suggested Benjy.
“Why should I have to do that?” argued Dani. “You had no right to use the motorbike!”
Dani and Benjy approached Rabbi Dayan and asked:
“Does Benjy have to buy Dani a motorbike?”
“A person who ‘borrows’ without permission, against the owner’s will, is tantamount to a thief,” replied Rabbi Dayan (C.M. 359:5).
“A thief is required to return the stolen item when it is intact. However, if it got ruined or changed significantly, the Mishna (B.K. 93b) teaches that the thief is required to pay the full value of the item, and he is left with the ruined item. He cannot return the ruined item and add the loss in value, unlike a borrower or one who damages, who can do so (C.M. 354:5).
“Nonetheless, Rambam (Hil. Gezeilah 2:15) rules that if the owner prefers his broken item, he can demand it and the loss in value from the thief. The commentators question why this is so; seemingly, the thief acquired the item on account of the change (shinui). Regardless, Shulchan Aruch rules like the Rambam (ibid; Sma 362:23).
“Moreover, the Gemara (B.K. 97a) addresses the case of a person who took someone’s boat without permission. He is liable for any damage incurred through the use (C.M. 363:5).
“Raavad (cited by Shitah Mekubetzes) asks why the person is not liable for the full value of the boat, following the rule in the Mishna, since it is no longer intact? He provides two answers:
“First, one who borrowed without permission is different from a thief in this specific regard; he suffices with returning the damaged item and paying the lost value, like other borrowers (C.M. 344:2).
“Second, when the item is still usable for its initial function, although somewhat ruined, even a thief can suffice with returning the item and adding the loss in value (see Sma 354:11).
“Chazon Ish (B.K. 20:3-4) and Nesivos (363:6) rule also according to the first answer of the Raavad, whereas Rashba and Gra (354:13) cite only the second answer.
“Chazon Ish furthermore understands the Raavad as saying that if the damage is minimal, so that the item is not considered “changed,” even a thief can return it as is (“harei shelcha l’fanecha”), and he is not obligated to pay the lost value. It is questionable whether the Rashba and Gra understood this way. Moreover, it is written in Chiddushei Rabbeinu Chaim Halevi (Hil. Gezeilah 2:15) that the Rambam seemingly requires paying any lost value.
“Thus,” concluded Rabbi Dayan, “Benjy does not have to buy a new motorbike, but must pay the lost value or repair cost.”
Verdict: A person who “borrowed” without permission, and the item was partially ruined, but still usable for its initial function, can return the item and pay the loss in value or repair cost.
