Yehuda and Dan shared a dwelling unit. A week before Chanukah, Dan brought a menorah over from him parent’s home. “That’s a beautiful menorah,” said Yehuda. “Is it silver?”
“Yes,” said Dan. “I got it many years ago as a bar mitzvah gift.”
“It will look real nice in the window,” said Yehuda.
“Actually, when I learned in Israel I got into the practice of lighting outside,” said Dan. “I have a special box to protect the menorah from wind and rain.”
“But what about thieves?” asked Yehuda. “Does the box also protect against thieves?”
“Sure, it’s got a built-in, state-of-art, security system,” said Dan with an earnest face. “Upon touch, it sounds a siren, lights up, and contacts the police, fire department, National Guard, army, navy, and air force!”
“OK, stop pulling my leg,” laughed Yehuda. “Seriously, you’re not worried?”
“I’m a drop nervous,” acknowledged Dan, “but our neighborhood is pretty safe. There have been very few thefts in recent years, so the hour or so I leave the menorah outside should be fine. At worst, I’ll lose $300 for the mitzvah.”
Each night, Dan lit the menorah outside and brought it in afterwards.
One evening, Yehuda returned from work a little late. Dan had already finished lighting and the box was back inside.
“Can I use your menorah and box tonight?” asked Yehuda.
“Sure,” said Dan. “I’ll be leaving soon, though, so just make sure to bring it back in when you’re finished.”
Yehuda replaced the used oil and wicks. He took the box with the menorah in it and placed it outside. He lit the menorah and sang Maoz Tzur together with Dan.
Fifteen minutes later, Dan got ready to leave. He stepped outside, and, to his dismay, the menorah was missing. It had been stolen.
Dan went back inside. “Guess what?” he said. “The menorah was stolen.”
“I don’t believe it!” exclaimed Yehuda. “My tough luck! I guess I’ll have to pay for it!”
“I’m not sure,” replied Dan. “I lent it to you with the intention that it would be left outside, and it was stolen while you were using it.”
“Great case for Rabbi Dayan!” said Yehuda with half a smile. “Let’s ask him.”
The following day, the two stopped off to see Rabbi Dayan and related what happened. “Is Yehuda liable for the menorah?” asked Dan.
“Generally, a borrower is liable for theft, and even for oness [uncontrollable circumstances],” replied Rabbi Dayan. “However, he is exempt for meisa machamas melacha, where the item was ruined through normal usage of the item.” (C.M. 340:1)
“This seems a simple case of theft,” noted Yehuda.
“Not necessarily,” replied Rabbi Dayan. “Parach Mateh Aharon, by R. Aharon Perachia,addresses a similar case of jewelry that was lost or stolen through the course of wearing. Does the exemption of meisa machamas melacha apply to theft through normal usage? He links this to a dispute cited in the Tur [C.M. 340] regarding a borrowed animal that was attacked while traveling.”
“What is that dispute?” asked Dan.
“The Ramah maintains that this is considered meisa machamas melacha, since the attack occurred on account of the travel,” explained Rabbi Dayan. “The Rosh, however, disagrees, since the loss of the animal was not due to the work usage itself. It could have been attacked even without working, so this is an extraneous oness, for which the borrower is liable.”
“What does the Shulchan Aruch rule?” asked Yehuda.
“The Beis Yosef defends the Ramah’s position that wild animals and bandits are uncommon in the city, whereas roads are dangerous, so that the attack is due to the travel,” answered Rabbi Dayan. “Accordingly, he rules in the Shulchan Aruch that the borrower is exempt. However, the Rama cites the opinion of the Rosh that the borrower is liable; the Shach [340:5] concurs with this opinion.”
“Perhaps there a difference between that case, where the animal was attacked, and our case of regular theft?” asked Dan.
“Parach Mateh Aharon suggests that even the Ramah might exempt only if an oness occurred through usage, not classic theft, but concedes that there is no source for this distinction,” replied Rabbi Dayan.
“In truth, the Nesivos [340:5] maintains that if the animal was simply stolen during the night, even the Shulchan Aruch would hold the borrower liable, since this could have occurred just as easily in the city. However, since the menorah was lent with the intention of being used outside, which carries a greater risk of theft, he might agree.”
“Thus,” concluded Rabbi Dayan, “Yehuda cannot be held liable for the menorah, on account of the lenient opinion of the Ramah and Shulchan Aruch. However, it would be proper to partially compensate Dan, in deference to the opinion of the Rosh, Rama, Shach, and Nesivos.”
