Aryeh and Dov were long-time chavrusos, known in the beis midrash for their fiery debates. One morning, the two were seated at their usual table, Gemaras and Rambam open, and a double-wall glass coffee mug resting by Dov’s side.
“Can I use your glass to make myself a coffee?” Aryeh asked, eyeing the mug.
“Sure,” Dov replied, handing it over generously.
A few minutes later, Aryeh returned to his seat, cradling the hot drink. The two delved back into the sugya, their boisterous discussions punctuated by sips of coffee.
After finishing his coffee, Aryeh stood up. “I need another cup,” he said, turning toward the urn with the glass still in hand.
“No, one cup is enough,” Dov objected. “I’m also thirsty; give back my mug.”
“I was up past two last night,” Aryeh said. “Baruch Hashem, I’m awake; I need the caffeine!”
Aryeh began to walk away, but Dov reached out and grabbed his arm.
The glass mug fell from Aryeh’s hand and crashed onto the floor, shattering into dozens of glittering pieces.
Aryeh blinked. “That was your fault!” he said. “You grabbed my arm and knocked the mug down.”
“I just held your arm,” Dov protested. “You dropped it! Maybe you let go of the mug!”
“It happened so fast,” Aryeh admitted. “I honestly don’t know whether you knocked it out or I let it go.”
“Regardless, you borrowed the mug,” said Dov. “You’re responsible.”
“Not if you made it fall,” Aryeh shot back. “There’s no question that you grabbed my arm.”
“And there’s no question you continued using the mug without permission and then dropped it,” Dov replied. “Neither of us can say for sure how it fell.”
The two approached Rabbi Dayan and asked:
“Is Aryeh liable for the mug, when we’re both not sure what exactly happened?”
“When a person lends an item without a defined time frame, he may demand it back any time,” replied Rabbi Dayan. “If he lent it for a specific purpose, the borrower may retain the item until completing the specific task for which he borrowed it, here, a single cup of coffee” (C.M. 341:1,5,7).
“When the borrower refuses to return the borrowed item and continues to use it wrongly, he is considered sholei’ach yad, one who misuses an entrusted item, or sho’el shelo mida’as, one who borrows without permission, and is tantamount to a thief. He remains liable until he returns the item intact (Minchas Chinuch 60:1; Kessef Kodashim 341:1; C.M. 292:5, 355:1).
There is a dispute regarding a guardian who has a questionable exemption – such as a borrower in a questionable case of meisa machamas melacha. Some maintain that the guardian is exempt, like a case where the initial obligation is questionable (aini yodei’a im hilvitani), whereas others hold him liable, like a case of definitive obligation and questionable payment (aini yodei’a im praticha) (see Ketzos 340:4; Shach 291:44).
Thus, had Aryeh remained merely a borrower, and doubt arose whether Dov knocked the mug out of his hand, Aryeh could claim kim li (meaning, I personally follow such and such opinion) as the opinions that exempt him, like a case where it is unclear whether he ever became obligated.
However, once Aryeh refused to return the mug and continued to use it, so that he is now tantamount to a thief, he has a definite obligation to return the mug. Whether Dov knocked it out of his hand now becomes a question whether Aryeh has an exemption from this liability.
Thus, had Dov claimed definitively that he didn’t knock the mug out of Aryeh’s hand, Aryeh would be liable if he were unsure. If Dov is also unsure and has only a questionable claim, Aryeh still has at least a heavenly obligation to pay, especially if Dov is not expected to know (Pischei Choshen, Geneivah 4:17; Halva’ah 2:32; C.M. 75:10).
“In our case,” concluded Rabbi Dayan, “Aryeh wrongly continued to use the mug and both parties are unsure whether Dov knocked it out of Aryeh’s hand or Aryeh released his grasp. Therefore, Aryeh is not enforceably liable for the mug, but he has a heavenly obligation to pay for it.”
Verdict: A person who continues to use a borrowed item without permission is liable for it like a thief. Nonetheless, if the lender does not have a definitive claim, the borrower is not enforceably liable, but has a heavenly obligation.
