The weekend was approaching. Men who worked during the week in the city began arriving at the bungalow colony.
Yehuda’s family, though, was heading to the city for a family simcha over Shabbos and Sunday.
Yehuda had an electric bike, which he usually kept locked. Occasionally he would rent it to other people in the bungalow colony for an hourly fee.
Yehuda’s neighbor, Asher, noticed that the bike was left unlocked. He had once asked to borrow the bike, and Yehuda hadn’t even charged him the rental fee.
“Yehuda is away for the weekend,” Asher said to himself. “I can ride the bike while he’s away; he won’t be any the wiser.”
On Friday afternoon, Asher took the bike and rode the trails around the bungalow grounds for a couple of hours.
As he neared home, Asher drove over a nail lying on the road, which punctured the inner tube.
Asher walked the bike back to Yehuda’s house and returned it to its place. Yehuda’s family returned late Sunday night.
In the morning, Asher approached Yehuda. “I saw that your bike was unlocked, and thought I’d take a spin,” he said. “Unfortunately, I rode over a nail on the road, and the inner tube got punctured.”
“Who gave you permission to use the bike?!” replied Yehuda. “I don’t let people take it without permission.”
“I know, but you were away,” said Asher. “You once let me ride the bike, and I expected to return it intact. I’ll pay you for the repair.”
“It’s not your fault that the tire got punctured,” said Yehuda, “but I do expect the hourly rental fee.”
The two called Rabbi Dayan and asked:
“Does Asher have to pay for the repair? Must he pay the rental fee?”
“The Gemara (B.M. 43b; B.B. 88a) teaches that one who borrows without permission, when it is not clear that the owner would allow the use, is tantamount to a thief,” replied Rabbi Dayan. “A person who steals, or borrows without permission, is required to return the item itself when intact, or its value when changed from its initial state” (C.M. 360:1).
“Moreover, a thief acquires a pseudo-ownership (kinyan gezeilah) of the item, and therefore is fully liable for the item, even if lost or damaged through uncontrollable circumstances or normal usage. Conversely, because of this pseudo-ownership, a thief, or one who borrows without permission, is not required to pay for use of the item, whether he returns the intact item or its value” (C.M. 363:3; see Kuntresei Shiurim, B.K. 20:5).
“Nonetheless, the Gemara (B.M. 97a) teaches that if there was depreciation of the item due to the wear and tear of usage, but not of sufficient nature to render the item ‘changed’ and not in its initial state, the thief is required to pay the depreciation, as part of his absolute liability for the item” (C.M. 363:5).
“Even if a person stole something intended for rent, due to the thief’s pseudo-ownership he is not required to pay the rental fee or compensate the owner for the lost revenue. The same is true if someone borrowed an item without permission, without intent to pay rental. However, if he intended to pay the rental fee, but took it without permission, the owner has the choice of claiming either the depreciation or the normal rental fee” (Shach 363:8; Chazon Ish, B.K. 20:4; Pischei Choshen, Geneivah 7:1-5[12]).
“Thus, in our case,” concluded Rabbi Dayan, “it was wrong of Asher to take Yehuda’s bike, since it was not clear that Yehuda would have allowed it. Asher is liable for the damage, even though it was not his fault and occurred through normal use. However, since Asher had no intention to rent the bike, he does not have to pay the rental fee.”
Verdict: A person who borrows without permission is tantamount to a thief. He is liable for any damage to the item, but does not have to pay the rental fee.
