“Arnie, can you please take the garbage out?” Mrs. Weiner asked her husband. “Tomorrow morning is pickup.”
Mr. Weiner tied the garbage bag and took it out – and saw that his garbage can was missing.
He put the bag down and looked for the missing garbage can. “Could it have rolled out to the street?” he said to himself. He checked the front of the house, but there was no garbage can there. He walked to the back of the house, but it was not there.
Finally, he spotted the garbage can. Their neighbor, Mr. Fixler was doing repairs on his house. He’d used a heavy wood board to make a platform and had propped it up with two garbage cans, the Fixlers’ and the Weiners’.
“What chutzpah!” Mr. Weiner exclaimed. “He had no right to use my garbage can without asking. It’s not the first time he’s used our things without permission.”
Mr. Weiner walked over to the garbage can and pulled it out from under the board. The board fell to the ground with a thud and split.
“Serves him right!” said Mr. Weiner. “I’ve warned him a hundred times not to take my things without permission!”
When Mr. Fixler returned, he saw that his board had fallen and split. “Do you know who broke my board?” he asked Mr. Weiner.
“Nobody broke it,” replied Weiner serenely. “I took my garbage can out from under; the board fell and split.”
“So you broke it!” shouted Mr. Fixler. “That was a solid wood board; it cost me 50 dollars.”
“It’s your fault,” replied Mr. Weiner. “You had no right to use my garbage can to prop your board. I warned you about this many times.”
“That still doesn’t give you a right to destroy my board,” retorted Mr. Fixler. “You should have been careful.”
“Had you not taken my garbage can without permission,” said Mr. Weiner hotly, “this never would have happened!”
“I acknowledge that it was wrong of me to take your garbage can,” said Mr. Fixler, “but that doesn’t give you a right to damage my property. You could have propped the board with something else or lowered it gently.”
“Why should I have to do that?” insisted Mr. Weiner. “You misappropriated my garbage can; I reclaimed it. Any ensuing damage is your fault for having taken my garbage can. ”
“Two wrongs don’t make a right,” said Mr. Fixler. “I acknowledge I was wrong to take your garbage can, but I didn’t damage it; you damaged my board! I want to ask Rabbi Dayan about this.”
“Fine,” said Mr. Weiner. “I have no doubt he’ll say it’s your problem.”
They came to Rabbi Dayan. “I used Mr. Weiner’s garbage can to prop my board,” said Mr. Fixler. “He pulled the can out and my board fell and smashed. He owes me 50 dollars for the board.”
“I didn’t touch his board,” argued Mr. Weiner. “I simply removed what was mine!”
“Without doubt, Mr. Fixler was wrong to use the Weiners’ garbage can,” ruled Rabbi Dayan. “However, since Mr. Weiner could have removed his garbage can and propped the board with something else or lowered the board gently, he is liable for the damage to the board.”
“Why is that?” asked Mr. Weiner.
“The Gemara [B.K. 28a] teaches that even when a person can take the law into his hands to protect his property, he may not do so in a manner that damages the other person’s property unnecessarily,” explained Rabbi Dayan.
“For example, if one animal jumps on another and attacks it, the owner can pull his animal out or remove the attacking animal. Nonetheless, if he can remove the attacking animal gently but shoves it off and injures it, he is liable.
“The Rosh extrapolates from this to a case in which someone steadied his barrel with another person’s stone. The second person removed his stone; the barrel then rolled and broke. The Rosh holds him liable for the barrel, since he could have replaced his stone with another one, to prevent the barrel from rolling. Here, too, you could have propped the board with something else or lowered it gently.” (C.M. 383:2)
“What if I needed the garbage can and could not easily find something to replace it?” asked Mr. Weiner. “I’ve got a bad back and a hernia. I can’t lower the board easily.”
“There is a dispute between the later authorities in that case,” replied Rabbi Dayan. “Some authorities exempt you if it is difficult to find a replacement. The Aruch Hashulchan maintains that you are still obligated, though, because he considers pulling out the garbage can a manner of damage, unless it was getting ruined by the weight of the board and time is of essence.” (Pischei Choshen, Nezikin 12:60; Aruch Hashulchan 383:7)
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to email@example.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail firstname.lastname@example.org.
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