Borrowing without permission
[1] (Halacha 648)
Question: May one benefit from another's property without his knowledge, relying on the fact that he will agree afterward once he knows? For example: a person who sees his friend's drink bottle — may he drink from it, if he knows that afterward, when he tells him, he will agree to it?
Answer: The Gemara in Maseches Bava Metzia1 says: 'Ameimar and Mar Zutra and Rav Ashi happened to come to the orchard of Mari bar Isak; his sharecropper brought dates and pomegranates and set them before them. Ameimar and Rav Ashi ate; Mar Zutra did not eat. .' [=Ameimar and Mar Zutra happened to come to the orchard of Mari bar Isak, at a time when he was not there, and the sharecropper — his laborer — set before them dates and pomegranates; Ameimar and Rav Ashi ate from the fruits, but Mar Zutra did not eat..].
And the Rishonim disagreed in explaining the conduct of Ameimar and Rav Ashi as to how they ate before the owner's knowledge, as follows:
Tosafos there wrote: 'And if you ask: why did he not eat — did not Rava say in the chapter HaGozel Basra2 that a sharecropper gives from his own portion? And one may answer that there [the case] is where the sharecropper brought from the house, for presumably he brings from what came to his share; but here, where he brought from the orchard, Mar Zutra was concerned lest at the time of division he not say to the orchard-owner "take corresponding to what I gave them." And Rav Ashi was not concerned about this, and therefore he ate before Mari bar Isak came, because the sharecropper gives from his own. For one cannot say that he was relying on Mari bar Isak's consenting when he knows, since the halacha follows Abaye, and even though now it is agreeable to him, at the outset it was not agreeable to him'.
We see from the words of Tosafos that essentially they all agree that it is forbidden to eat from the fruits before the owner's knowledge, since despair without knowledge is not despair, [and the reason Ameimar and Rav Ashi ate is that they held the sharecropper gave them from his own, on account of what is coming to him].
And so wrote the Hagahos Mordechai3, and the Hagahos Ashri4. And the Chiddushei HaRitva on the Gemara there discussed this at length.
But in the Chiddushim of one of the Rishonim (mistakenly attributed to the Ritva) on the Gemara there he wrote: 'How did Ameimar and Rav Ashi eat? One may answer that they surely knew that it is agreeable to Mari bar Isak that a talmid chacham benefit from his property, and it did not come into his hand through prohibition, for the Merciful One permitted it from the outset — for even though he did not know of this, since they are talmidei chachamim, as we say regarding the sweeping tide of the sea, and analyze this well'. That is, in his view it is permitted to eat on the basis of the knowledge that the owner will certainly agree.
And in the Shitah Mekubetzes there he wrote: 'But the Rashba answered that even if he has no share in the fruits it is permitted, because it is an assessment of intent that the orchard-owner does not object to such, and so was the custom. It is similar to what we say in the Tosefta of the last chapter of Bava Kamma: the son who was eating from his father's, and likewise a slave who was eating from his master's, cuts off and gives a slice to the son or the slave of his friend, and does not worry about robbing the householder, for so was the custom. And for this reason too we say in HaGozel Basra that charity collectors accept charity from women in a small amount. The Ran'5.
And in practice the Acharonim disagreed about this, for the Shach6 challenged the aforementioned Rishonim, and wrote: 'And were I not afraid I would say that it is permitted, and despair without knowledge is different, for even afterward he despairs only because he does not know where it is, and against his will he despairs; if so, we say that from the outset it came into his hand through prohibition, for with what shall he acquire it — if through despair, now he does not despair, and had he known that it was with him he would not despair, whereas here, since it is known that he will agree, if so now too it comes into his hand through permission, for presumably he does not object to it; and even though in the Talmud there it likens terumah and impurity to despair without knowledge, there is another reason there, for regarding terumah and impurity we require actual knowledge, see there, and analyze this ..'. And so wrote the Noda BiYehudah7.
But the Rebbe8 disagreed with the Shach, and wrote: And even if it is clear to him that when the owner knows that he took it he will rejoice and be glad on account of his love for him, it is forbidden for him to benefit from it without the owner's knowledge. Therefore one who enters the orchard or garden of his fellow may not pick fruits without the owner's knowledge, even though the owner of the orchard and garden is his friend and companion who is as his own soul and will certainly rejoice and be glad when he knows that this one benefited from his fruits; nonetheless, since now he does not know of this, behold he benefits in prohibition, and likewise all similar cases, and one must warn the public who stumble in this out of lack of knowledge'. [And see the continuation of the words of the Rebbe that indeed in cases where everyone conducts themselves so, and the owners too know of the custom, it is permitted]. And in the Kitzur Shulchan Aruch9 he copied the words of the Rebbe as the halacha.
And so wrote the Ketzos HaChoshen10: 'And according to what the Shach wrote in siman 358 to disagree with the aforementioned words of Tosafos, and wrote that it is permitted to take from one's fellow without knowledge whenever it is known that he will not object, see there — if so, he should not have said here that we require the seller's knowledge, since it is known that he will not object, so that it stand in trustworthiness. However, there in siman 358 the words of the Shach are not compelling, and the essential [ruling] is like the words of Tosafos in the chapter Elu Metzios'.
If so, in practice it is forbidden to take another person's property (such as an item of food and the like) without informing him, even in a case where it is clear to us that when he knows he will agree.
In tomorrow's halacha we will learn what the law is regarding using/borrowing a friend's object without his knowledge.
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Notes:
1 כב, א ↩
2 ב"ק קיט, א ↩
3 ב"מ רמז תכה ↩
4 ב"מ פ"ב סי' ג ↩
5 אמנם אדמו"ר הזקן בשו"ע חו"מ הל' מציאה ופקדון בקו"א ס"ק א מבאר שהרשב"א ג"כ מסכים עקרונית לדברי התוס' ורק נחלקו מהו המנהג בפועל: 'והתוס' וסיעתם לא פליגי על הרשב"א שבשיטה מקובצתי בדינא, כי אם במציאות, דהתוספות סבירא להו דוחק לומר שכך נהגו כמ"ש הרשב"א ודו"ק', ולהעיר מסי' שנט, א לגבי נטילת קיסם, ואכמ"ל ↩
6 חו"מ סי' שנח ס"ק א ↩
7 תנינא אהע"ז סי' עז ד"ה ומה שנסתפקתם ↩
8 שו"ע חו"מ שם ס"ד ↩
9 סי' קפב סי"ג ↩
10 סי' רט ס"ק ה. וכ"כ בסי' רסב ס"ק א ↩
[2] (Halacha 649)
Borrowing without permission
In the previous halacha we learned that it is forbidden to take another's money without his knowledge, even in a case where when he knows he will agree.
Question: May one use an object of his fellow without his knowledge?
Answer: The Mishnah in Maseches Bava Basra1 says: 'One who sends his son to a shopkeeper (with a pundyon in his hand), and he measured out for him an issar's worth of oil and gave him the issar as change, [and the son] broke the flask and lost the issar — the shopkeeper is liable; Rabbi Yehudah exempts, for it was on that condition that he sent him.' And the Gemara explains2: 'Rather Rava said: I and the lion of the company explained it, and who is he? Rabbi Zeira: with what are we dealing here — such as where he took it to measure with it for others, and they disagree regarding one who borrows without permission; one Master holds: he is a borrower, and one Master holds: he is a robber'.
And the Rif3 wrote: 'And the halacha is that one who borrows without permission is a robber'.
And so wrote the Rambam4: 'One who borrows without the owners' knowledge is a robber, [if] a utensil was in the hand of the householder's son or in the hand of his slave and one of them took it and used it, this is one who borrows without permission and it became in his domain and he became liable for its mishaps until he returns it to the owners; therefore if he returned it to the minor in whose hand it was or to the slave and it was lost from them or broke, he is liable to pay, and likewise all similar cases'.
And so ruled the Mechaber5: 'Even one who takes by way of borrowing, without the owners' knowledge, is called a robber'. And he further wrote6: 'And likewise if he took it with the intent of borrowing without permission, he is a robber'.
If so, we have learned that in practice using an object without the owners' authorization is called borrowing without permission, and is considered a robber, and therefore one may not use an object without its owners' permission.
★ ★ ★
Question: Is there a difference between a use that could damage the object as a result of the use, or not, and does one need to inform the owners in advance?
Answer: The Ritva7 wrote: 'And one who borrows without permission does not intend to cause the owners any loss, but rather wishes to use it and return it to its place, and if it is a use that is fit for payment his intent is to give payment to the owners; however, in the use that he performs there is damage to the owners' property, and even though it is not diminished by the use, it is possible, since he is moving it about, that it will break or that damage will befall it, for regarding a thing that cannot come to damage through its being moved, there is no one who holds that one who borrows without permission is a robber, for he has done nothing at all, and all this is from the foundation of the Ramban, and so too appears the view of Rashi below'.
And he further wrote8: 'You might have thought it is agreeable to a person that a mitzvah be performed with his property, [therefore] it teaches us. Explanation: it teaches us that in this, since there is objection due to the damaging of the sefer, it is not agreeable to him, for his reward would be offset by his loss, since today or tomorrow he will not have a sefer with which to study; but in a matter where there is no concern of damage at all, one may certainly borrow without the owners' knowledge to perform a mitzvah, such as if he found his fellow's tallis or tefillin in the beis haknesses and the like, he is permitted to put them on there and return them to their place, and it is not considered a robber when he borrowed without the owners' knowledge, from the mouth of our teacher of blessed memory'.
Except that the Machaneh Efraim9 raised a difficulty that his words are contradictory, for in one place he wrote that regarding an object that cannot come to damage there is no application at all of the law of one who borrows without permission, and in the second place he wrote that it is permitted only for the purpose of a mitzvah10.
However, it appears that there is no contradiction in the words of the Ritva, but rather one must distinguish between an object in which damage is not applicable, and an object in which damage is applicable but that I use in a manner that does not damage it; that regarding an object in which damage is not applicable, the owners do not object, and therefore there is no prohibition of use, whereas regarding an object in which it is possible that it will be damaged, but I wish to use it in a manner that will not damage it, in this one requires knowledge that the owners agree, since there is here a possibility of damage, and therefore only if it is clear to me that the owners agree is it permitted, [and likewise regarding a mitzvah object where it is clear that the owners agree, as will be explained in the next halacha].
And as the Rebbe11 wrote as the halacha regarding (an object that is not consumed): 'But if he does not remove it entirely, but rather uses it for his own need and not for the need of the deposit, and the deposit is not spoiled or damaged at all by this use, there is no [prohibition of] misappropriation in it, only [the matter of] one who borrows without permission, and if he knows clearly that the depositor does not object to it, it is permitted. And it need not be said [that it is permitted] if it is a thing that people are not accustomed to object to at all, since there is no concern of loss or damage at all to the deposit from this use. But a use that some people object to due to concern of damage, even if it is a remote concern, is forbidden both regarding a lost object and regarding a deposit on account of one who borrows without permission, even if he is certain that he will not damage it at all, unless it is known to him that the depositor will not object at all to this'.
And he further wrote12: 'But it is forbidden to go to one's fellow's house to read there from his sefer even occasionally without his knowledge .. and it need not be said [that it is forbidden] to use his other objects unless it is known to him clearly that the owner of the object will not object to it, or that it is a thing that not all people are accustomed to object to at all, since there is no concern of loss or damage at all in this use. But a thing that some people object to due to concern of damage, even though most do not object because it is a remote concern, one does not follow the majority in this to say that presumably the owner of this object will not object; and even if it is certain to him that he will not damage it at all, it is forbidden, for the owner of the object is concerned at any rate lest he damage it, and had he known that this one was using his objects it is possible that he would have objected, and this one turns out to be one who borrows without the owners' knowledge and he is a robber even though he does not damage it at all ..'.
If so, in practice it is permitted to use one's fellow's object provided that it is clear to him that his fellow will not object13, and likewise in a manner that not all people are accustomed to object to; but if even a minority object, one may not use it, even in a manner that does not damage.
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Notes:
1 פז, ב ↩
2 שם פח, א ↩
3 ב"מ כג, ב ↩
4 הל' גזלה ואבדה פ"ג הט"ו ↩
5 שו"ע חו"מ סי' שנט ס"ה ↩
6 שם סי' שסג ס"ה ↩
7 ב"מ מא, א ↩
8 כט, ב ↩
9 הל' גזילה סי' כ ↩
10 כתב הפתחי חושן הל' גניבה ואונאה פ"ז הערה ב: 'ואפשר לחלק שלכתחלה אסור אף בדבר שאינו מתקלקל, ובחפץ מצוה מותר אף לכתחלה, אבל בדיעבד אינו נעשה גזלן' ↩
11 הל' מציאה ופקדון סכ"ח ↩
12 הל' שאלה ושכירות וחסימה ס"ה. וראה בב' הלכות אלו שבמ"מ צוין לשיטה מקובצת בשם הריטב"א ↩
13 בזה שונה שואל שרק משתמש בחפץ ולא מזיקו, מאוכל מאכל של חבירו ששם לא מועיל גם אם יודע שחבירו אח"כ יסכים, וצריך לשאלו לפני הלקיחה. משא"כ כאן די בכך שיודע שחבירו לא יפקיד על כזו השתמשות, למרות שאין הסכמה בפועל לפני ההשתמשות. וראה מנחת פתים חו"מ סי' שנח ס"ד. וראה גם אמרי יעקב על שו"ע אדה"ז דיני שאלה בביאורים ד"ה אא"כ ידוע לו בבירור ↩
[3] (Halacha 650)
Borrowing without permission [2]
Question: May one use mitzvah objects of another person, without his knowledge? (1)
Answer: The Gemara in Maseches Pesachim1 says: 'A question was raised before them: One who rents a house to his fellow under the presumption that it is checked, and found that it is not checked, what is [the law]? Is it like a mistaken transaction, or not? - Come and hear, for Abaye said: not only in a place where they do not pay a wage and check [is this so] - since it is agreeable to a person to fulfill a mitzvah with his body, but even in a place where they pay a wage and check, since it is agreeable to a person to fulfill a mitzvah with his money'.
But the Gemara in Maseches Bava Metzia2 says: 'Shmuel said: One who finds tefillin in the market assesses their value and dons them immediately. Ravina objected: [If] one finds sefarim he reads in them once every thirty days, and if he does not know how to read - he rolls them. He rolls them - yes; assesses their value and dons them - no! Abaye said: tefillin at the house of bar Chavu are commonly found; sefarim are not commonly found. Our Rabbis taught: One who borrows a sefer Torah from his fellow may not lend it to another, .. The Master said: One who borrows a sefer Torah from his fellow may not lend it to another. Why specifically a sefer Torah? Even any matter too! For Rabbi Shimon ben Lakish said: here Rabbi taught that the borrower may not lend, and the renter may not rent out. A sefer Torah was necessary [to state], lest you say: it is agreeable to a person that a mitzvah be performed with his money, it teaches us'.
And from the words of the Gemara we see that on the one hand it is agreeable to a person that a mitzvah be fulfilled with his money, and regarding one who finds tefillin he assesses their value and dons them, yet on the other hand regarding a sefer Torah we do not say this principle, and based on this the Rishonim discussed whether a person may wrap himself in a tallis or don the tefillin of another person without his permission, as follows:
Rabbeinu Peretz wrote in the Hagahos on the Semak3: 'One may recite a bracha over his fellow's tallis .. and even without permission too, for presumably it is agreeable to a person that we perform a mitzvah with his money, however a tallis that is folded and set aside requires taking permission'. And so wrote the Rosh4.
The Mordechai5 cited Rabbeinu Peretz but was in doubt regarding a folded tallis: 'And in the Semak he wrote .. and even without permission it appears that he may recite a bracha, for it is agreeable to a person that a mitzvah be performed with his money, however Maharam explained that regarding a folded [tallis] one requires taking permission, and to me, the lowly one, it appears that if he folds it as at the outset it is permitted, or perhaps since the owner folded it he revealed his intent that he objects to the matter of lending it'6.
The Ritva7 wrote: 'You might have thought it is agreeable to a person that a mitzvah be performed with his money, [therefore] it teaches us. Explanation: it teaches us that in this, since there is objection due to the damaging of the sefer, it is not agreeable to him, for his reward would be offset by his loss, since today or tomorrow he will not have a sefer with which to study; but in a matter where there is no concern of damage at all, one may certainly borrow without the owners' knowledge to perform a mitzvah, such as if he found his fellow's tallis or tefillin in the beis haknesses and the like, he is permitted to put them on there and return them to their place, and it is not considered a robber when he borrowed without the owners' knowledge, from the mouth of our teacher of blessed memory'.
But the Nimukei Yosef8 wondered at him: 'And I wonder at this ruling of my teachers of blessed memory, for we explicitly say at the end of the chapter Elu Metzios [that] one who finds tefillin assesses their value and dons them, and were it not that he assessed them and acquired them, we would not permit him to don them, like the rest of the substance of a lost object which one is forbidden to use, and they did not permit [it] on account of a mitzvah; regarding a sefer Torah too, regarding "the borrower may not lend," where we say "you might have thought it is agreeable to a person etc., it teaches us"; and had my teachers of blessed memory any proof I would force myself to reconcile this, but now I wonder'.
The Maharshal9 wrote to explain the objection of the Nimukei Yosef10: 'It appears to me that what comes about merely by chance is not comparable, for certainly it is agreeable to him that a mitzvah be performed with his money, even if he found it folded, only that he folds it as at first; but regarding a lost object, to keep them always, and to use them as one's own, certainly presumably it is not agreeable to him, and for this reason he assesses their value'.
But the Nimukei Yosef in Hilchos Tzitzis11 wrote: 'And in a place where they are accustomed to leave their talleisim in the beis haknesses, if a person comes to wrap himself in one for the moment and to return it to its place, it is permitted and it is not considered one who borrows without permission [who] is a robber, since there is here no concern of destroying the principal, [and] it is agreeable to a person that they perform a mitzvah with his money, unlike regarding sefarim where perhaps he will come to read in them a great deal until it tears from much handling .. all this is from the foundation of the Ritva of blessed memory'.
And some wrote to explain that his words in Menachos are specifically regarding [talleisim] left in the beis haknesses, as the Admas Kodesh12 wrote: 'Indeed, according to what I wrote it is understood, for there it deals with one who enters his fellow's house without his knowledge, then it is forbidden, and what he wrote in Hilchos Tzitzis deals with talleisim of the beis haknesses, as above, [this] settles the view of the Nimukei Yosef, and analyze this'.
And along these lines the Aruch HaShulchan13 wrote: 'It is thus explicit that even those who permit only permitted [it] when the talleisim are set in the beis haknesses, and not that each one hides his tallis in a concealed place, for in such a case we do not find anyone who permitted'.
If so, we have seen from the words of the Rishonim that although it is forbidden to use another person's object [since it is possible that he objects to its use], nevertheless for the purpose of a mitzvah it is permitted to use it, since it is agreeable to a person that mitzvos be performed with his money. However, since the permission is based on the fact that presumably he does not object, therefore when there is a concern that he objects it is forbidden to use it.
And therefore we saw in the words of the Rishonim several limitations: a) A sefer Torah and sefarim, in which there is concern of damage, are forbidden. b) There is no permission when it is set in a concealed place. c) There is no permission for regular use. d) One must return the object as it was.
In tomorrow's halacha we will see how the poskim ruled in practice.
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Notes:
1 ד, ב ↩
2 כט, ב ↩
3 מצוה לא ↩
4 חולין פ"ח סי' כו ↩
5 מנחות רמז תתקנ ↩
6 להעיר מדברי המרדכי בב"מ רמז רסג שמחמיר וכותב: 'שלא מדעתו והא ודאי לא ניחא ליה אבל לקיומי מצוה בממוניה מדעתו בודאי ניחא ליה, ולי נראה דהתם גבי בדיקת חמץ דאית ביה טרחא ולכך גמר ומשעבד נפשיה אבל בעלמא לא'. וראה מ"ש הפר"ח באו"ח סי' תלז ס"ג. חיד"א בברכ"י או"ח שם ס"ק ו. שד"ח כללים מערכת הנון כלל י (ח"ג ע' תקע) ↩
7 ב"מ שם, וכ"כ בב"ב פח, א ↩
8 ב"ב מד, ב ↩
9 יש"ש חולין פ"ח סי' נג ↩
10 וראה מ"ש לבאר הרמ"א בדרכ"מ או"ח סי' יד ↩
11 ה"ק הל' ציצית יב, א ↩
12 שו"ת ח"א חאו"ח סי' יד ↩
13 או"ח סי' יד סי"ב ↩
[4] (Halacha 651)
Borrowing without permission [3]
Question: May one use another person's mitzvah objects without his knowledge (2)
Answer: We saw in the previous halacha that the Rishonim wrote that regarding sefarim one may not use them without one's fellow's permission, for presumably he objects to using sefarim that could tear, whereas regarding a tallis and tefillin they permitted using them under various conditions.
And in practice the Mechaber1 wrote: 'It is permitted to take one's fellow's tallis and recite a bracha over it, provided that he folds it if he found it folded'.
And regarding the reason that one must fold [it], the Tumas Yesharim2 wrote: 'And what troubled you — why did they say that when he folds it, it is agreeable to him, and when he does not fold it, it is not agreeable to him — it appears one may distinguish that every loss of money required in the performance of the mitzvah is [something that] it is agreeable to a person to perform. And therefore regarding wearing the tzitzis it is agreeable to him even though there will be damage at the time of his wearing it or for the purpose of wearing it, but regarding damage that occurs after his wearing it, it is not agreeable to him, and therefore they said that he must fold it since he found it folded, for if he does not fold it the tallis turns out to be damaged after the performance of the mitzvah, and it is not agreeable to him that the tzitzis be damaged after the performance of the mitzvah'3.
And the Rema wrote there in a gloss: 'And the same applies to tefillin'.
An additional law the Rema4 wrote: 'It is found in ancient enactments not to remove a tallis or a sefer from the beis haknesses without the owners' permission'.
And so wrote the Maharshal5, cited in the Taz6, and in the Magen Avraham7: 'It also appears that it is forbidden to remove it from the beis haknesses and to wear the tallis, or to don the tefillin, for it is not agreeable to him that he remove his [property] from its established place, that is, where he set it in a special place'.
And this is the language of the Rebbe8: 'It is permitted to wrap oneself in one's fellow's tallis without his knowledge, and it is not like one who borrows without permission who is called a robber, since there is here no concern of destroying the principal, for he wraps himself in it only for the moment and returns it to him afterward, and it is agreeable to a person that a mitzvah be performed with his property in a place where there is no monetary loss; only that if he found the tallis folded he must also fold it after he removes it from upon himself, for if he does not fold it the owner of the tallis will object and it is [then] one who borrows without permission who is called a robber ..'.
And he further wrote9: 'They permitted wrapping oneself in one's fellow's tallis without his knowledge only occasionally, but on a regular basis it is forbidden, lest the owner of the tallis object10; and even occasionally they permitted wrapping oneself [in it] only in the place where the owners set it, but he may not take it out from that place to another place, such as from the beis haknesses to his house or from the owners' house to the beis haknesses; and even if he returns and sets it in the place from which he took it, it is forbidden, for it is not agreeable to a person that his objects be moved about to a place where they are not designated for him'.
And he further wrote11: 'And likewise it is permitted to don occasionally one's fellow's tefillin without his knowledge, and he must recite a bracha over them, since tefillin are an obligation of the body and there is no need that the tefillin be specifically his; only he should be careful to fold them if he found them folded, and not to remove them from the place where they were set, lest the owner of the tefillin object to him, and it be a mitzvah that comes about through a transgression'.
However the Pri Megadim12 wrote, cited in the Mishnah Berurah13: 'And it is certainly fitting, when its owner is with him, that he ask him, like that [teaching] at the beginning of Pesachim [4a] "for what practical difference" — "let him ask him," and one does not rely on a presumption where it is possible to clarify easily, and all the more so if it is known of him that he objects'.
And the Kaf HaChaim14 wrote: 'From the language of the Ri that the Beis Yosef cited, who wrote as follows: "and those who take tzitzis that they find in the beis haknesses etc.," it implies that specifically if the tzitzis are set thus in the beis haknesses on the shelf, or in a window that has no door and lock, it is permitted to take [them], for we say, since he set them thus and did not conceal them behind a door and lock, he does not object, and it is agreeable to a person to perform a mitzvah with his money .. but if the tallis is set in a chest or in a window that has a door and lock, we do not say that he should bring a key and open the chest or the window and take the tallis on account of "it is agreeable to him etc.," for certainly the owners object to this'.
We have seen that in practice the poskim wrote that it is permitted to use one's fellow's tallis or tefillin, but they added the conditions that it is forbidden to go with the tallis to another place, and that one must fold it back after use, and that there is no permission for regular use. And likewise that when there is a possibility of verifying with the owner of the tallis, one must ask him. And likewise if they are located in a locked place, one may not use them. In the next halacha we will see whether these matters apply also in our times or whether there is a change in this.
[Regarding the details of folding the tallis, and folding on Shabbos, and whether one should recite a bracha over this tallis that he takes without the owners' authorization, we will discuss, please G-d, in separate halachos].
Notes:
1 שו"ע או"ח סי' יד ס"ד ↩
2 שו"ת סי' מו, הובא בכנה"ג הגה"ט. וכוונתו לבאר שלמרות שבגמ' לגבי בדיקת חמץ אומרים שנוח לו שיעשה המצווה גם אם הוא מוציא ממון על זה, אעפ"כ צריך לקפל, וראה הערה הבאה ↩
3 ראה שו"ע אדמו"ר הזקן או"ח סי' תלג קו"א ס"ק ד שכתב: 'עיין מגן אברהם. וכוונתו דלא תקשי ממ"ש בסימן י"ד גבי טלית שצריך לקפלה, וע"ז תירץ דהפסד הבא אחר עשיית המצוה לא ניחא ליה. ועיין בפרי חדש שהעלה לחלק בין הפסד מועט להפסד מרובה ..' ↩
4 שו"ע חו"מ סי' קסג ס"ו ציין לזה המג"א שם ס"ק י ↩
5 יש"ש חולין פ"ח סי' נג ↩
6 או"ח סי' יד ס"ק ו ↩
7 שם ס"ק ז ↩
8 שו"ע או"ח סי' יד ס"ט ↩
9 שם ס"י ↩
10 כתב אשל אברהם (בוטשאטש) סי' יד: 'לא נתפרש בזה הגבול מהו ארעי ומהו קבע, ורחוק לומר שהגבול הזה ליום. ונראה שהגבול הזה לפי אומדנא, שאין צד קפידא חלה בזה יותר מבחסרון קיבול. וצלע"ע היטב'. וראה שו"ת הרב עזריאל הילדסהיימר או"ח סי' קיט שיותר מפעם בשנה לא חשיב ארעי. וראה במקור חיים (בכרך) שכתב שלא יותר מאחד לשלושים יום ↩
11 שם סי"ב ↩
12 שם משב"ז ס"ק ו ↩
13 שם ס"ק יג ↩
[5] (Halacha 652)
Borrowing without permission [4]
May one use another person's mitzvah objects without his knowledge (3)
We learned that it is permitted for a person to use his fellow's tallis or tefillin, since it is agreeable to a person that a mitzvah be performed with his money, and therefore he does not object to the use of his objects for a mitzvah.
Question: Is the law also so in our times, that it is permitted to use one's fellow's tallis without his knowledge?
Answer: We saw in the previous halachos that the permission to use a person's object for the purpose of a mitzvah is because he does not diminish the object, and this is use alone, and therefore the knowledge that the owners do not object suffices when it is used for the needs of a mitzvah; and based on this several of the poskim wrote that in places where it is possible that the owner objects, the use is forbidden.
And as the Aruch HaShulchan1 wrote: 'The Tur and Shulchan Aruch wrote in se'if 4 that it is permitted to take one's fellow's tallis and recite a bracha over it, provided that he folds it if he found it folded. End quote. Because certainly it is agreeable to a person to perform a mitzvah with his money (Tur), and the will of the owner of the tallis is so, and he does not object. And therefore if we know that he is a fastidious man — it is forbidden to take [it] without his knowledge. And it appears to me, in my humble opinion, that although our teachers ruled this law, that ordinarily it is permitted to take one's fellow's tallis without his knowledge and to pray in it on the reasoning that it is certainly agreeable to him, nevertheless we see that many object to this very much, and especially when the tallis is new and clean. And there are also people who cannot bear at all that another person wear their garment on account of sweat and cleanliness. And it appears to me, in my humble opinion, that one must deliberate greatly in this law'.
And along these lines the Ben Ish Chai2 wrote: 'In our time we see that the majority of the world object to others wearing their tzitzis and tefillin, and therefore one should not take from the shamash the tzitzis and tefillin of others without the owners' knowledge, unless the shamash knows clearly that the owners do not object; and not all opinions are equal in these matters — behold I too recognize regarding myself that I am among the people who object to this, and the reasons vary'.
And see also the words of the Gaon Rabbi Chaim Palagi in his sefer Lev Chaim3: 'Now in these times of ours, since the fine talleisim are bought at costly prices, and we see how many people object to giving their tallis to anyone, and some of them explicitly command the shamash not to give their tallis to anyone — behold, the entire support of those who permit reciting a bracha over a borrowed tallis is because it is agreeable to a person to perform a mitzvah with his money, and behold, whoever objects and to whom it is not agreeable, there is no room to recite a bracha according to all opinions ..'.
His son too, the Gaon Rabbi Yaakov Palagi of blessed memory, wrote in Yafeh LaLev4 as follows: 'And behold this reason (that regarding sefarim the use without his knowledge is forbidden because we are concerned lest he tear them in his study) is present also regarding a tallis, as I saw with my own eyes that one took his fellow's tallis without his knowledge, and when he came to wear it, when he raised his hands to wrap himself in it, it caught in a thicket and tore; and likewise he further touched a lamp of oil and it spilled on it and became ruined; and likewise regarding tefillin that touch the flesh, for many people object to their fellow's sweat, and there is a concern of danger from some illness that may be upon him, G-d spare us — for so there is a side to forbid, that it is forbidden for a person to take his fellow's tallis without his knowledge, and all the more so tefillin that adhere and touch himself and his flesh, or [where] its owner is fastidious and objects to another's sweat, even with permission it is forbidden, for when he gives [it] it is only on account of embarrassment, without a complete [willing] mind, for there is in them [the aspect of] robbery; and if they said in Sotah 17a — Rava expounded: in reward for Avraham Avinu having said "if from a thread to a shoe-strap," his descendants merited two mitzvos, the thread of techeiles and the strap of tefillin etc., and Rashi explained: in reward for "if from a thread to a shoe-strap," that he distanced himself from robbery, see there — how is it fitting for a person to enter himself into a doubt of robbery regarding these two mitzvos, for that which we merited them was because Avraham Avinu was careful of the concern of robbery, as stated'5.
And see also what the Tzitz Eliezer6 wrote: 'In their times they were able to buy a tallis and likewise tefillin cheaply, and therefore the objection to them was not so great, but not so in our time when they cost much money, and the price is especially great, exceedingly, in buying tefillin; and therefore the aforementioned assumption is clear and acceptable, that for the most part they object to lending them, whether on account of their being ruined from much use and strange hands handling [them], or on account of fastidiousness and the difficulty of buying others in their place .. as stated, it is well said that the matter depends on the traits and characteristics of the people who are in that place or environment, whether their nature is coarse or the opposite, and the like, and then when there is a change one must be careful to take tallis and tefillin in the beis haknesses to fulfill the mitzvos in them only after clarification that they are indeed communal property'.
If so, in a place where the norm is that each one closes his tallis and tefillin in a bag with his name, or places them in a personal compartment, and likewise in places where there are those who object to the use of their tallis or tefillin, one may not use the tallis or tefillin without permission. Unless it is known that this person does not object, in which case one may use [them] without asking permission.
--------------
Notes:
1 סי' יד הי"א ↩
2 ש"א לך לך אות ז ↩
3 ח"ב סי' קמב עמ' ק,ב. וראה שדי חמד כללים מערכת הנון כלל יד ↩
4 חה"ש סי' י"ד אות א ↩
5 וכ"כ בשלחן הטהור (קאמארנא) סי' יד ה"ג לגבי טלית: 'יזהר שלא ליקח טלית חברו בלא דעת חברו'. וכתב בזר זהב: 'דרוב העולם מקפידים בפרט מי שיש לו תמיד נאה ועוד על עיקר הדין יש לתמוה דמאי ניחא ליה לאינש למיעבד מצוה בממונו היינו דוקא במצוקה דרמיא על חבירו כגון אתרוג תפילין סוכה וכיוצא אבל במלבוש חביב עליו והתורה לא רמיא חיובא כלל ללבוש ציצית.. ולכן יזהר מאוד כי לדעתי קרוב לאיסור גזל ועבירה הוא ולא מצוה אבל סוכה אתרוג תפילין מותר בלי שום פקפוק' ↩
6 חי"ב סי' ז. אך ראה בשו"ת אגרות משה או"ח ח"ה סי' כ. וכפשוט שהדבר תלוי ומשתנה ממקום למקום לפי הרגילות במקום ↩
[6] (Halacha 653)
Borrowing without permission [5]
May one use another person's mitzvah objects without his knowledge (4)
We learned that since a person is glad that a mitzvah be performed with his money, it is permitted (under certain conditions) to use one's fellow's tallis and tefillin.
Question: What is the law regarding using one's fellow's lulav without his knowledge?
Answer: We saw that there is a difference between taking a thing from one's fellow, such as drinking from one's fellow's bottle, which is forbidden even when it is certain that afterward, when his fellow knows of it, he will agree; and using one's fellow's object that he does not diminish, which is permitted when it is certain that his fellow will not object to it. In light of this distinction we will see below the distinction between taking one's fellow's lulav on the first day of the festival, and the rest of the days.
The Terumas HaDeshen1 wrote: 'Question: Someone wants to set out on a journey during Chol HaMo'ed of Sukkos, and comes early to the beis haknesses to recite a bracha over the lulav, and does not find the lulav and esrog of the community, but finds the lulavim and esrogim of his fellows. May he take them and recite a bracha over them or not? Answer: It appears that it is well [permitted] to recite a bracha over one of the individuals', since we hold that on the rest of the days, apart from the first day, one fulfills [the obligation] with a borrowed one even initially. And if you say: this borrowing is without permission, and Rav Alfas ruled in the chapter HaMafkid that a borrowed [item] without permission is called robbery, and if so it is robbed and not borrowed. And the Or Zarua and Semag wrote in the name of R. Eliezer, and likewise in the Asheri, and likewise in the Semak "and some say," that a robbed [lulav] is invalid even on the rest of the days. Nevertheless it appears that in such a case it is agreeable to a person to perform a mitzvah with his money. And similar to this the Asheri wrote in the chapter Kol HaBasar, that they were accustomed to wrap themselves in one's fellow's tallis even without his knowledge, and we rely on this [reasoning] that it is agreeable to a person to fulfill a mitzvah with his money. And if he found it folded he should fold it back, for in another manner it is not agreeable to him. End quote. Behold before us, that wherever it appears that he does not diminish his fellow's money at all in his using it, we say he does not object and it is agreeable to him to fulfill a mitzvah with it. And in taking the esrog and lulav merely to recite the bracha of the lulav and to shake it as required, reason inclines that there is no objection at all, and it is agreeable to him as with a tallis. And it is not comparable to that which we say in the chapter Elu Metzios, [that if] one finds sefarim he may not study in them, and we do not say it is agreeable to a person, for sefarim are different, that they are smudged and damaged when one studies in them. And if you say [the Gemara] states unqualifiedly "he may not study in them," even a little — one may answer that since there is no fixed measure to study, it states it thus unqualifiedly. Unlike wrapping oneself in the tallis and taking the esrog and lulav, which have a limit, and understand this. And one should not bring proof to our case from the ruling of the Ra'avyah in the Mordechai, chapter Elu Metzios, who wrote that anyone who intends for a mitzvah is not called a robber even without permission; for there he refers to the man himself, that he is not disqualified thereby for an oath, but nevertheless it is called a robbed object, and one does not fulfill [the obligation] with them'.
The Rema2 cited his words as the halacha: 'And it is permitted to take one's fellow's lulav without his fellow's knowledge, on the rest of the days, for it is agreeable to a person to perform a mitzvah with his money, and it is as a borrowed [item]'.
And the Magen Avraham3 wrote: 'But it is forbidden to take [it] from his house to the beis haknesses or the reverse as stated in siman 14 se'if 4, upon what is stated there'.
And so wrote the Rebbe4: 'And it is permitted to take one's fellow's lulav without his knowledge and to recite a bracha over it on the rest of the days apart from the first day, as will be explained in siman 658, for presumably his fellow will not object to this, since it is agreeable to a person that a mitzvah be performed with his money in a thing that has no monetary loss, for the lulav is not damaged thereby; but it is forbidden to take the lulav out from the place where its owner set it to another place, such as from his house to the beis haknesses, as explained in siman 14, see there the reason'.
And the Pri Megadim5 wrote: 'In the Terumas HaDeshen [siman] 100, regarding sefarim even a little is forbidden to study, for there is no [defined] limit. Unlike a lulav and esrog, which have a limit, to take and to shake, it is permitted, see there. And it implies an esrog too. And it is a little difficult, for it says [Sukkah 34b] terumah he may not take, for he ruins it by the handling of the hand, see the Rambam, chapter 8 of [Hilchos] Sukkah and Lulav [halacha 2]. And according to the one who holds [there, 35b] that he prepares it [makes it fit], perhaps he concedes to the one who holds [there] that he ruins it. And one may answer that for all seven days he ruins [it], but a single time he does not. And according to this, [if] Reuven bought an esrog and went to another city, the community is not permitted to take [it] without knowledge, for there is no limit and they ruin the esrog. And the lulav too one may say that without knowledge in such a case it is robbery'.
We saw in the previous halacha regarding a tallis that there are places where they object to others using it, and then one may not use one's fellow's tallis. So too regarding a lulav, in places where it is possible that the owners object to the use, one may not use another person's lulav without his permission. But in places where they do not object when another uses one's fellow's lulav, it is permitted to use [it] on a one-time basis, since presumably he does not object. Yet nevertheless his non-objection does not render it as his own6, and therefore this does not help on the first day of the festival.
In the next halacha we will see the details of the law regarding a shofar.
Notes:
1 סי' ק הובא בב"י או"ח סו"ס תרמט. וראה גם תרוה"ד פסקים וכתבים סי' קנט ↩
2 או"ח סי' תרמט ס"ה בהג"ה ↩
3 ס"ק טז ↩
4 סי' תרמט ס"ג ↩
5 משבצות זהב סק"ז ↩
6 וראה פרמ"ג שם, הובא במשנ"ב שעה"צ אות כט. וראה מש"כ בהלכות הקודמות שלגבי בעלות וכו' לא יועיל הסכמה אח"כ, דיאוש שלא מדעת לא הוי יאוש. וראה גם מג"א סי' תרנח ס"ק ג ובמחצית השקל. ובבכורי יעקב סק"ו ↩
[7] (Halacha 654)
Borrowing without permission [6] shofar (3)
May one use another person's mitzvah objects without his knowledge (5)
Question: A person who sees his fellow's shofar in the beis haknesses — may he use it and sound [it]?
Answer: We saw in the previous halachos the words of the Gemara and the Rishonim regarding the use of one's fellow's objects for the purpose of a mitzvah, such as sefarim, a tallis, tefillin, and a lulav. However the Acharonim discussed also regarding a shofar, as follows:
The Magen Avraham1 wrote: 'And it appears to me that it is permitted to take one's fellow's shofar without his knowledge and to recite a bracha over it, as stated in siman 649 se'if 5; and even though a shofar is somewhat damaged by the sounding of it, is not a tallis also somewhat damaged, and even so it is permitted, as stated in siman 14; and there is no concern that he will sound it a great deal as with sefarim, for why would he sound [it] more than the measure of his obligation, as it appears to me'.
And so wrote the Rebbe2: 'It is permitted to take one's fellow's shofar without his knowledge to sound with it the sounding of the mitzvah, and he recites a bracha over it, for presumably it is agreeable to a person that they perform a mitzvah with his money in a thing that has no monetary loss, as stated in siman 14, see there'.
[And to note also from what the Noda BiYehudah3 wrote, that the entire law of "it is agreeable to a person that they perform a mitzvah with his money" is when he takes it in the manner of borrowing, and not when he holds it in a manner of ownership, as follows: 'And what he asked regarding someone in one of the countries of India who sold an idol and with the money bought a shofar, whether it is permitted to sound with it .. And although there is further room to be lenient, that certainly when he bought the shofar from the aforementioned money he did not inform the owner of the shofar that this money is the exchange of an idol, and if so it is a mistaken transaction and the shofar is not considered the exchange of an idol .. and furthermore, if so it would be a robbed shofar and one may not recite a bracha over it; and although it is permitted to take one's fellow's shofar without his knowledge, that is [where] he took it in the manner of borrowing, unlike this [case] where he holds it absolutely, in a manner that there is no [basis] to be lenient to sound with this shofar at all'].
If so, a shofar too — it is permitted to sound with one's fellow's shofar without his knowledge, unless in a place where people object to another person using their shofar4, but he should not take the shofar out from its place, as we saw in the previous halachos with respect to a tallis and a lulav.
In the next halacha we will discuss what one may sound with the shofar, whether also the soundings of the month of Elul.
Notes:
1 סי' תקפו ס"ק ד ↩
2 סי' תקפ"ו ס"ה ↩
3 שו"ת מהדו"ת או"ח סי' קיא ↩
4 יש מפוסקי דורנו (ראה קיצור הל' המועדים (דבילצקי) עמ' פ (הובא בפסקי תשובות סי' תקפו הערה 6), ובנטעי גבריאל ר"ה פמ"ד הערה י). שכתבו שכמו שכתב הערוך השלחן (או"ח סי"ד הי"א, הובא בהלכה 652) לגבי ציצית: 'וגם יש בני אדם שאין סובלין כלל שאדם אחר ילבש בגד שלהם מטעם זיעה ונקיות', ושלכן יש להתיישב בדין זה, א"כ הוא הדין בזמננו שאנשים מקפידים יותר על הגיינה, יתכן שיש אנשים המקפידים שלא יבוא השופר במגע פה של איש אחר מצד הרוק וכדומה, א"כ אפשר שבכל ענין יהיה אסור להשתמש ללא רשות אא"כ יודע ודאי שאין בעל השופר מקפיד על כך'. אמנם לכאורה יש להשיב על דבריהם שסברא זו בלבד אינה מספיקה לאסור בכל מקום את הדין הפשוט במג"א ואדמו"ר הזקן שמותר לתקוע בשופר של חבירו, ומאידך כמובן שצריך להקפיד לנקות את פיית השופר אחרי השימוש, וכמו בטלית שצריך להחזירה מקופלת בגמר השימוש ↩
[8] (Halacha 655)
Borrowing without permission [7] shofar (4)
May one use another person's mitzvah objects without his knowledge (6)
Question: Is the principle that it is agreeable to a person that a mitzvah be performed with his money in a thing that has no monetary loss stated only regarding mitzvos whose fulfillment is from the Torah, or also regarding rabbinic ones?
Answer: The Beis Yaakov1 wrote, and the Yad Malachi2 cited it, Kelalei HaDinim rule 463, and the Ikrei HaDat3 siman 17 os 2: 'And it appears to me, in my humble opinion, that this that we say that it is agreeable to a person etc. is specifically regarding a Torah mitzvah, but not regarding a rabbinic mitzvah. And with this it appears one may resolve the aforementioned objection of Tosafos according to what the Tur wrote in the name of the Ra'avad, that this question — is it "not initially" that we require, whether he must remove it or not — certainly he must, for it is no less than [chametz] hidden in a pit; rather, [the case] deals with where he checked and nullified, and "he found it after its prohibition" it should have said. End quote. And if so, in any case the objection of Tosafos — that this that they said it is agreeable to a person etc. is when he did not nullify, but if he nullified then the checking is only rabbinic, for by Torah law mere nullification suffices, and regarding a rabbinic [obligation] we do not say it is agreeable to a person etc.'.
But the Tal Oros4 rejected his words5 and proved from a lulav on Chol HaMo'ed that even though it is a rabbinic mitzvah, nevertheless we say it is agreeable to him, as is also explained in the Shulchan Aruch of the Rebbe6.
If so, the principle that it is agreeable to a person that a mitzvah be fulfilled with his money is stated also regarding rabbinic mitzvos, such as sounding a shofar on the second day of Rosh HaShanah.
★ ★ ★
Question: Is this principle stated only regarding a mitzvah that a person is obligated to fulfill, or also regarding a mitzvah that a person is not obligated to fulfill, such as sounding a shofar for women?
Answer: In the previous halacha we cited the Magen Avraham7 who wrote: 'And even though a shofar is somewhat damaged by the sounding of it, is not a tallis also somewhat damaged, and even so it is permitted, as stated in siman 14, and there is no concern that he will sound it a great deal as with sefarim, for why would he sound [it] more than the measure of his obligation, as it appears to me'.
And based on this the Mateh Efraim8 wrote: 'But he should not sound with it more than the measure of his obligation, lest his fellow object, since the shofar is somewhat damaged by the sounding of it; and nevertheless he may sound one hundred sounds with it, since they were accustomed to sound this measure, as explained'.
And the responsa Hisorerus Teshuvah9 wrote: 'One should examine this that we say [in] Pesachim (4b) it is agreeable to a person to perform a mitzvah with his money, whether the halacha is so also regarding a mitzvah that is not a complete obligation but only optional. Such as what the Rema ruled (siman 649 se'if 5) that it is permitted to take one's fellow's lulav on Chol HaMo'ed without his knowledge to fulfill [the obligation] with it, and if so regarding our women who are accustomed to take a lulav and recite a bracha over it, whether they may do so. And it appears to me, in my humble opinion, to bring proof from the words of the Magen Avraham that it is permitted, for on what the Mechaber ruled in Hilchos Tzitzis (siman 14 se'if 4) that it is permitted to take one's fellow's tallis without his knowledge and to recite a bracha over it, the Magen Avraham (subsection 8) raised a difficulty: granted regarding a borrowed tallis he may recite a bracha since he lends it with his knowledge and it is as a gift on condition to return, but here where it is not with his knowledge how may he recite a bracha, and he answered that just as women recite brochos even over mitzvos that are time-bound from which women are exempt, so too regarding a borrowed tallis he may recite a bracha; and even so the Rema wrote that it is permitted to take [it] without his knowledge, which proves that even regarding a mitzvah that is not obligatory the halacha is so, that is [the proof]'10.
And see also the responsa Igros Moshe11 who wrote: 'And what your honored Torah [greatness] was in doubt about regarding a woman who is exempt from the mitzvah of lulav and wishes to fulfill the mitzvah, whether she too may take another's lulav without his knowledge on the rest of the days — for perhaps the reasoning of the Rema in siman 649 se'if 5, that it is permitted to take [it] without his knowledge because it is agreeable to a person to perform a mitzvah with his money, is only for a man who is obligated in the mitzvah and not for a woman who is not obligated — it appears to me, in my humble opinion, that since in any case she has a mitzvah and she has reward for this, it too is within this presumption that it is agreeable to a person that they perform a mitzvah with his money. And a proof from tzitzis in siman 14 se'if 4, that it is permitted to take one's fellow's tallis and recite a bracha over it, also on account of it being agreeable to a person to perform a mitzvah with his money, even though the whole matter of wearing a tallis at the time of prayer is not an actual obligation even rabbinically but is rather a good minhag — because nevertheless, since he fulfills a mitzvah in the wearing, it is within the presumption that it is agreeable to him, since damage through this is not common; therefore also regarding a woman, even though she is not obligated and there is also no minhag to obligate her, since in any case she has a fulfillment of a mitzvah, it is within the presumption that it is agreeable to a person. And this it appears is also the source for what is written in the Mishnah Berurah siman 586 in the name of the Mateh Efraim that it is permitted to sound with one's fellow's shofar all one hundred sounds, even though it is only a minhag, which your honored Torah [greatness] mentioned'.
[But to take one's fellow's shofar to practice for the soundings, the poskim wrote that it is forbidden, as the Chayei Adam12 wrote: but to practice it is forbidden to take [it] without the owners' knowledge, unless he knows that his fellow does not object to this'].
If so, we saw that it is permitted to use one's fellow's object for the purpose of fulfilling a mitzvah in its entirety, such as to sound all one hundred sounds, and likewise also for the purpose of those who are not truly obligated in the mitzvah, such as sounding a shofar for women.
Please G-d, tomorrow we will see further details in this.
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Notes:
1 שו"ת סי' נ ↩
2 כללי הדינים כלל תסג ↩
3 סי' יז אות ב ↩
4 לרבי יוסף אבן ג'ויה ח"ב סי' א ע' ד ואילך, ועמוד ז ↩
5 גם בקהלת יעקב ח"ב קונטרס מדות חכמים אות רו הקשה עליו. וראה שד"ח (ח"ג ע' תקע) מערכת הנון כלל ניחא ליה - כלל ט. ולהעיר ממ"ש הקהלת יעקב שם (אות רז) דלא אמרינן ניחא ליה לאיניש במקרה של ספק מצוה וכדמוכח מהתוספות בפסחים (י, ב) 'בממוניה לא אטרחוהו רבנן - פי' הכא דוק' דשמא יוציאנה או יאכלנה אבל היכא דאיכא חמץ אמר לעיל דניחא ליה לאינש דליעבד מצוה בממוניה', (וראה מ"ש השד"ח שם (ע' תקעא) כלל יא) ↩
6 או"ח סי' תרמ"ט ס"ג ↩
7 סי' תקפו ס"ק ד ↩
8 סי' תקפו ס"ה ↩
9 או"ח סי' ו ↩
10 ולהעיר שבכלל לבישת טלית אינה מצווה חיובית (שלכן הקשה בשלחן הטהור מניין שניחא ליה וראה הלכה 625 הע' 5) ומ"מ כתבו הראשונים שניחא ליה שיעשו מצוה בממונו. אלא שעכ"פ המתעטף מקיים מצווה, וכאן מלמדנו שאפילו כשאינו מקיים מצווה ממש מ"מ אמרינן ניחא ליה ↩
11 או"ח ח"ב סי' קו ↩
12 כלל קמ סי"ח, הובא באלף המגן סי' תקפו ס"ק י ↩
[9] (Halacha 656)
Borrowing without permission [8] shofar (5)
May one use another person's mitzvah objects without his knowledge (7)
Question: Is the principle that it is agreeable to a person that a mitzvah be performed with his money stated only regarding the fulfillment of a mitzvah, or also regarding the accessories of a mitzvah?
Answer: The Gaon Rabbi Shlomo Kluger1 wrote: 'I was asked [about] one who has a kittel as a pledge from someone, whether it is permitted to lend it to another without the borrower's knowledge. It appears that it is permitted, since it is explicit in the Shulchan Aruch Orach Chaim in siman 14 that it is permitted to take one's fellow's tallis without his knowledge on account of it being agreeable to him to fulfill a mitzvah with his money, and if so here too, since it is explicit in siman 22 in the Taz that one should not go into a bathroom in a kittel since it became designated for a mitzvah, to pray in it, [and] one may not use it for a degrading use, see there — and if so, since it is a garment of a mitzvah, it reverts to being similar to a tallis, regarding which we say it is agreeable to him to fulfill a mitzvah with his money, and it is permitted to take it without his knowledge; since the Taz compares it to a tallis with respect to this, that one should not go into a bathroom in it for a degrading use, so too it is similar in this to a tallis, that it is permitted to take it without one's fellow's knowledge, and consequently the lender is thereby permitted to lend it without the borrower's knowledge. And one cannot say that it is liable to become soiled — this is not so, for through washing it returns to its former [state], and there is no loss to the owners at all in this that he will wash it again, and this is clear'.
From his words it appears that the aforementioned principle is stated not only regarding use for the fulfillment of the mitzvah itself but also regarding matters accompanying the mitzvah, although one must examine [this], for a tallis was permitted not only because of the prayer but because in the wearing of the tallis itself one fulfills a mitzvah2.
★ ★ ★
Question: Do we state the aforementioned principle regarding a person who has the ability to fulfill the mitzvah but wishes to take his fellow's [object] since it is more mehudar, or in order to hasten to the mitzvah?
---Answer: The responsa Betzel HaChochma3 writes: 'I was in doubt regarding one who came to the beis haknesses and did not have his tallis and tefillin with him, so he sent a messenger to his home who brought them to him; but meanwhile the first minyan will pray, and he too wishes to pray with them as is his custom, to be among the zealous who hasten to a mitzvah. May he take the tallis and tefillin of his fellow without his knowledge in order to pray with the first minyan and to be among the zealous. For this seems to me obvious, that what was ruled in Shulchan Aruch OC — that one is permitted to take his fellow's tallis without his knowledge, for the reason that a person is amenable, etc. — this is specifically when he does not have a tallis of his own; but if he has a tallis with which to fulfill the mitzvah, he is not permitted to take his fellow's, for we do not say "he is amenable," etc., except when it is impossible for his fellow to fulfill the mitzvah with his own, whereas when he does have [one, we do not]. Yet I am in doubt in our case, since the tallis is not now in his hand to fulfill the mitzvah in the manner of the zealous who hasten — do we say that a person is amenable, etc., that he fulfill the mitzvah of the zealous who hasten by means of it, or perhaps only for fulfilling the mitzvah itself do we say that a person is amenable with his money, but when the essence of the mitzvah he can fulfill without it, we do not say that he is amenable, etc., in order to fulfill the mitzvah by means of it with zeal. I searched in the seforim at hand and did not find an allusion to this .. And now I have seen in the sefer of responsa Even Shesi (Chelek OC siman 7) that he was in doubt regarding something like this: whether the reasoning that a person is amenable, etc., applies in order to fulfill hidur mitzvah — such as where the essence of the mitzvah he can fulfill with his own, but his fellow's is more beautiful, may he take it without his knowledge in order to fulfill the mitzvah in a beautified manner — and he wrote that he did not find any disclosure of this, but from the standpoint of reasoning it appears more that "a person is amenable," etc., does not apply so much in this, see there .. And behold, the dispute of the Chacham Tzvi, the She'eilas Ya'avetz, and other Acharonim is well known — whether the zealous who hasten is preferable or hidur mitzvah is preferable; and since with regard to hidur mitzvah the Gaon in the aforementioned responsa Even Shesi reasons that we do not say "he is amenable," etc., so it is also with regard to the zealous who hasten'.
And so wrote the Nefesh Chaya (Margolios)4, that it is reasonable that we do not say "he is amenable" with regard to hidur mitzvah, and therefore a person who has arba minim but wishes to make a bracha on his fellow's, which are more beautiful, is not permitted to take them without his permission.
★ ★ ★
Question: Do we say the above rule with regard to the fulfillment of a minhag, such as for the blowing of the shofar of the month of Elul?
Answer: There is room to deliberate regarding the blowing of the shofar in the month of Elul, since it is only a minhag and not a mitzvah, and it has not been clarified in the poskim whether the rule that a person is amenable to having a mitzvah performed with his money is said also with regard to minhogim. And some have written that with regard to a minhag the above rule is not said5; however, it may be said that since with regard to the reasons for blowing the shofar in the month of Elul the poskim have written6 that it is on account of an awakening to teshuvah, and if so it may be said that since this is part of the ways of fulfilling the mitzvah of teshuvah, which is a positive mitzvah from the Torah, it would be permitted to take also for the shofar-blowing of the month of Elul.
If so, we have seen that we do not say the rule that a person is amenable regarding a person who has a way to fulfill the mitzvah but wishes to take his fellow's only for the sake of hidur mitzvah. And we have seen that it is permitted to take even something that is not the mitzvah itself but is accompanying to the mitzvah, such as a kittel and the like. And we have further seen that it has not been clarified whether one may take for the sake of fulfilling a minhag; however, it may be that with the blowing of the shofar of the month of Elul there is room to be lenient, since this minhag is part of the fulfillment of the mitzvah of teshuvah7.
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Notes:
1 שו"ת האלף לך שלמה או"ח סי' ח ↩
2 אך להעיר ממ"ש הרעק"א בהגהותיו על או"ח סי' יד מג"א ס"ק ח: 'גם ע"ז יש לדון כיון דעכ"פ מתנה לא הוי, והוי כטלית שאולה ואינו מקיים בזה מצות ציצית. שוב נימא דמקפיד ולא שייך בי' ניחא לי' לאינש לקיים מצוה בממוני' דהא לא אתעביד בי' מצוה ויהי' אסור ליטלו'. ולכאורה נראה מדבריו שלמרות שטלית היא גם חלק מלבושי התפלה אעפ"כ סבר הרעק"א שאם לא מקיים בזה עצמו את המצוה לא אמרינן ניחא ליה ↩
3 ח"ו סי' קיט ↩
4 או"ח סי' יד ↩
5 ראה בשער האיתן על סי' תקפו ס"ב שיתכן שזה תלוי בין דברי המג"א והרעק"א בסי' תקפו, שהמג"א סק"ד כתב לגבי שופר 'וליכא למיחש שיתקע בו הרבה כמו בספרים דלמה יתקע יותר מכדי חיובו כנ"ל', אך הרע"א כתב 'וגם הא אסור לתקוע יותר מחיובו כדלקמן סי' תקצו' (-לגבי ר"ה). שי"ל שלרע"א הותר רק בימים שאסור לתקוע יותר. אמנם י"ל שלדברי האלף לך שלמה הנ"ל שהתיר אפילו קיטל במשכון ודאי יהא מותר שופר באלול. [ולהעיר מלשונו של אדמו"ר הזקן שו"ע או"ח סי' תקפו ס"ה שהוסיף על לשון המג"א וכתב: 'מותר ליטול שופר של חבירו שלא מדעתו לתקוע בו *תקיעה של מצוה* ומברך עליו דמן הסתם נוח לו לאדם שיעשו מצוה בממונו בדבר שאין בו חסרון כיס כמ"ש בסי' י"ד ע"ש'. ועצ"ע] ↩
6 ראה הלכה 639 ↩
7 אמנם כיון שיש לדון בזה, א"כ במקרה שיש ספק שמא אין זה נוח לבעלים, שב ואל תעשה עדיף ↩
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[9] (halacha 657)
Is it permitted to use another person's mitzvah objects without his knowledge (8)
In halacha number 651 we learned that one who takes a folded tallis must return it folded.
Question: Does the manner of folding matter, and what is the ruling on Shabbos?
Answer: The Rosh wrote1: 'And if he found it folded, he should go back and fold it as it was originally, for otherwise it is not agreeable to him'. And so it is in the Mordechai2. And in Rabbeinu Yerucham3.
And from the plain language of the Rishonim it appears that one must fold it exactly as it was folded when he took it; however, it is explained in the Acharonim that the intent of the Rishonim is not to be particular about the original manner of folding, but rather the main thing is that it be folded, as the Knesses HaGedolah wrote4: 'And so it appears to infer from the words of Rabbeinu Baal HaTurim siman 14, who wrote: provided that he fold it if he found it folded. End quote. Which implies that as long as he folds it in some fold, it is permitted, and the Rosh of blessed memory who wrote .. and if he found it folded he should go back and fold it as it was originally, did not mean to say that one must fold it like the original fold, but rather that which he said 'as it was originally' refers to the essential folding, and this is what he means: he must fold it as he found it folded, but his intent is not to say that the fold must be like the original'.
The Acharonim further discussed why in certain communities they did not have the custom to fold, and how it is correct to act on Shabbos, as follows:
The Knesses HaGedolah wrote5: 'They had the custom in Constantinople that individuals of one congregation would come to another congregation for the joy of a chassan or kallah .. or for some other reason, and if they pray there, they wrap themselves in the tallis of their fellows, and leave them unfolded and go on their way. And at first glance there is no basis for this custom .. and perhaps they relied on the plain words of the Nimukei Yosef cited by Rabbeinu Beis Yosef, from whose words it appears that even without folding it is permitted. And this is not sufficient, since according to the other authorities one must fold it, why should they enter into a doubt of a bracha in vain .. since this one goes to his congregation and that one goes to his congregation, presumably they are not particular about this if they leave them unfolded. And the minhag of Israel is Torah'.
And in the Hagahos Beis Yosef6 he wrote: 'And on Shabbos, when he cannot fold it, it is forbidden. I found a handwritten gloss, and it seems to me that it is from Maharash Yafeh of blessed memory. And in Constantinople they practice leniently. And in this Tur siman 302 page 195a, view 44, I inclined to uphold the custom and to permit when he folds it, but not like the original fold. And according to the reason I wrote above, that they practiced leniency to wrap themselves in their fellow's tallis without folding it afterward, since this one goes to his congregation and that one goes to his congregation, presumably they are not particular, it is likewise settled what they practiced leniently on Shabbos, since they do not fold them afterward there is no Shabbos prohibition here'.
And in Orach Chaim siman 302 there he wrote: 'But with one's fellow's tallis, which is permitted to wrap oneself in only if one folds it as it was originally, one should not wrap oneself in it on Shabbos, for if he folds it in the order of its original folding it is forbidden because of Shabbos, and if he does not fold it, it has already been explained in this Tur siman 14 that one should not wrap oneself in it for he is like a thief .. and it is possible for me to say that if he folds it not in the order of its original folding, even on Shabbos it is permitted to wrap oneself in one's fellow's tallis, for a person is not particular except if one leaves it entirely unfolded, but if one folds it even though it is not in the order of its original folding he is not particular .. and according to the reason I wrote above, that they practiced leniency to wrap themselves in their fellow's tallis without folding it afterward, since this one goes to his congregation and that one goes to his congregation, presumably they are not particular, it is likewise settled what they practiced leniently on Shabbos, for since they do not fold them afterward, there is no Shabbos prohibition here'.
And based on this the Magen Avraham wrote7: 'that he fold it. Even not in the order of its original folding, and on Shabbos even if he does not fold it at all it is permitted as above; see Knesses HaGedolah siman 302'.
And the Pri Megadim wrote: 'In the Knesses HaGedolah he is stringent on a weekday that he fold it in its original fold, and on Shabbos even though it is not like its original fold, and the Magen Avraham is lenient on a weekday even though it is not like its original fold, and on Shabbos even if he does not fold it at all, and I do not know at present from where this is derived, and at first glance on a weekday at least in its original fold, for the owner is particular about this, and this requires further study'8.
But the Machatzis HaShekel explained the words of the Magen Avraham: 'That is to say, since in siman 302 se'if 3 there is a dispute as to whether one is permitted to fold a tallis on Shabbos not in the order of its original folding. And even though the Rav Beis Yosef wrote there that the opinion permitting folding it not in the order of its original folding appears correct to him, nevertheless one who does not fold it at all is certainly preferable, for thereby he satisfies all the opinions9. If so, just as we say a person is content to perform a mitzvah with his money, he is content also with this, that others fulfill it according to all opinions, and no prohibition is done on his account according to any opinion, in a matter where he has no loss except a very small amount'.
Rabbi Akiva Eiger too in his glosses there explained: 'And in its simple meaning there is no difficulty at all, for that which he is content even with a loss of money, that is if the mitzvah is not done without a loss of money, and he is content to lose money so that the mitzvah be fulfilled, but here, where it is possible to perform the mitzvah without a loss of money, that he fulfill the mitzvah and fold it, for there is no intent to lend it except by way of his folding it. And for this reason the words of the Magen Avraham come out well, that on Shabbos, when he is not permitted to fold it, that even so it is permitted to take it, and that is in a case where it is impossible — he is content to perform a mitzvah with his money even though there is a loss of money. And this is easily understood'.
And so the Alter Rebbe ruled in practice10: 'And one need not fold it specifically in the original order, but rather even if he folds it in another manner that is sufficient, and on Shabbos one need not fold it at all; see siman 302'.
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Notes:
1 חולין פ"ח סי' כו ↩
2 מנחות רמז תתקנ ↩
3 תולדות אדם וחוה נתיב יט ח"ג קסח, ד ↩
4 הגב"י או"ח סי' שב אות ד ↩
5 הגה"ט או"ח סי' יד אות א ↩
6 שם אות ג ↩
7 או"ח סי' יד ס"ק ט ↩
8 וראה עוד ג"כ מה שהאריך להקשות בעיקרי הד"ט סי' ב אות ג ↩
9 ולהעיר ג"כ מקצות השלחן סי' קיז ס"ב שכתב: 'ואנשי מעשה נוהגין להחמיר אפילו שלא כסדר קיפולו הראשון'. וראה שם בדה"ש הערה ח ↩
10 שו"ע או"ח סי' יד ס"ט ↩