Taking someone’s item without permission if one plans to keep the item [Part 2]:

Taking someone’s item without permission if one plans to keep the item [Part 2]:[1]

It is forbidden for one to use or take an item that belongs to one’s friend without his permission.[2]

One knows for certain that the owner is not particular against one using or taking it:[3] If one knows for certain that the owner is not particular against one using his item, then it is permitted to use it without his explicit permission. [This, however, only applies to using the item and then returning it to the owner in the same state. However, it is always forbidden to “borrow” an item of another for the sake of keeping it, or returning it in a damaged state, even if one knows for certain that the owner does not mind, unless one receives explicit permission from the owner.[4]] Thus, it is forbidden to enter the orchard or garden of a friend and collect from the produce [for his personal use, such as to eat] without the owners explicit permission. This applies even if the owner of the orchard is a very close friend who loves him like his own soul and one thus knows for certain [that not only will he not mind, but on the contrary] he will rejoice and be happy when he is informed that his friend benefited from his fruit, nevertheless, since at the moment the owner is unaware of this, it is therefore considered that he is benefiting in a prohibited fashion. The same applies for all cases of the like. One is required to warn the public regarding this matter, as many people transgress this this due to lack of knowledge.[5] This, however, only applies to a matter that has not become public practice, or an accustomed allowance from the owner. If, however, a certain benefit of one’s property has become public practice, such as allowing one’s wife to give a small sum to charity to one asking by the door, (or the owner has agreed to the friends benefit already on several occasions), then it is permitted to benefit from the product even if he will take it from himself, and the owner does not have explicit knowledge of this, at the time.[6] 

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[1] Admur O.C. 14:13 and C.M. Metzia Upikadon 27 regarding borrowing Sefarim; Metzia Upikadon Halacha 4 regarding benefiting from lost object and taking fruit of friend; Gezeila Ugeneiva 10 regarding benefiting from stolen item; Sheila Vesichirus 5 that it goes without saying that this applies to other items of Reshus; Rama O.C. 14:4; Smeh C.M. 75/6; Nimukei Yosef Tzitzis 12a in name of Ritva; See Piskeiy Teshuvos 14:10

[2] The reason: As borrowing an item without permission [i.e. Sheila Shelo Midaas Baalim] is considered stealing and is thus forbidden. [Admur C.M. Metzia Upikadon 27 in parentheses; Sheila Vesichirus 5; Metzia Upikadon Halacha 4]

[3] Admur Sheila Vesichirus 5; Rama C.M. 292/20 regarding Pikadon of Sefarim by Talmid Chachaim; Smeh 292/45

Contradiction from Metzia Upikadon Halacha 4: Admur states in Hilchos Metzia Upikadon Halacha 4 that one may never benefit from another person’s item without his knowledge even if one knows for certain that his friend will not mind, thus contradicting his ruling in Sheila Vesichirus 5. Perhaps, however, one can suggest that the two Halachos refer to different cases and actually compliment and qualify each other. In the case that one desires to use the item and then return it to the owner with no loss occurring to it, such as reading a Sefer, then it is permitted to do so if one knows for certain that the owner does not mind, as in essence nothing has been taken/stolen, other than its use, and on this we know the owner does not mind. This is the ruling in Sheila Vesichirus 5. However, if one desires to take some of the item and consume it, such as to “borrow” a piece of paper for writing, or “borrow” a fruit for eating, then since he is in actuality taking the physical item from the owner and this item will not be returned, then it is forbidden to do so without explicit permission of the owner even if he knows for certain that the owner does not mind. This then is the ruling in Metzia Upikadon Halacha 4. Vetzaruch Iyun!

[4] Admur Metzia Upikadon Halacha 4 “Even if one knows for certain that when he tells the owner that he took the item, the owner will rejoice and be happy due to the great love they share, it is nevertheless forbidden to benefit from it without the owner’s knowledge. Thus, it is forbidden…..” Kuntrus Achron 1; See explanation in previous footnote!

Other opinions: Some Poskim rule it is permitted for one to take the item for personal keeping if one knows for certain that the owner does not mind. [Shach C.M. 358:1, brought in Admur ibid Kuntrus Achron 1]

[5] Admur Metzia Upikadon Halacha 4 and Kuntrus Achron 1; Mar Zutra in Bava Metzia 22a and Tosafus, Ramban, and Ritva there;

Other opinions: Some Poskim rule it is permitted for one to take the item for personal keeping if one knows for certain that the owner does not mind. [Shach C.M. 358:1, brought in Admur ibid Kuntrus Achron 1]

[6] Admur Metzia Upikadon Halacha 5 [parentheses in original]; Michaber Y.D. 248:6 regarding wife giving charity; Tosefta Bava Kama 11:2, brought in Rashbam Bava Basar 43b; Terumos Hadeshen 188

The reason this is allowed: As since the custom is to allow others to take it, it is not at all considered without the consent of the owner, as thus is the custom and the owner knows of the custom. [Admur ibid]

[7] See Gr”a C.M. 163; Minchas Yitzchak 7/130; Piskeiy Teshuvos 14/10; See Chesed Lealafim 14/5, brought in Kaf Hachaim 14/31, for a similar defense regarding Siddurim; Lehoros Nasan 6/127-128