The Siegels were celebrating their son’s aufruf. They had a small crowd, so they were going to cook by themselves and eat at shul. Their neighbors, the Kaplans, had a gmach of simcha items, which they would rent out for events.
“I’d love to get some simcha items, but the Kaplans are away for the month,” Mrs. Siegel said to her husband. “I tried contacting them but haven’t been successful.”
“The items are in their garage, and we have a copy of the key,” said Mr. Siegel. “I could just take them.”
“Take the items without asking?” asked Mrs. Siegel incredulously.
“Why not,” replied Mr. Siegel. “They’re meant for rent, anyway.”
“I’m not comfortable with the idea,” said Mrs. Siegel, “but if you think it’s not a problem, go ahead.”
Mr. Siegel took an urn, three hotplates, and some boxes of vases and flowers from the garage. He took them to the shul and set them up in the room where they were eating.
Mr. Siegel plugged in the urn. It heated for 20 minutes and then shorted. He tried another outlet, but the urn would not work. “It seems that something burned out,” Mr. Siegel sighed. He quickly borrowed an urn from a neighbor.
After Shabbos, Mr. Siegel placed the items on the curb to load into his car. Without warning, a branch fell from above, smashing the vases in one of the boxes.
When Mr. Kaplan returned, Mr. Siegel said: “We have some business to discuss.”
“What happened?” asked Mr. Kaplan.
“We took items for the aufruf from your gmach, intending to pay, but a bunch of things went wrong,” Mr. Siegel said. “The urn shorted and a branch broke while I was loading the boxes back into the car. I have to pay you for the urn and the vases of flowers, in addition to the regular rental fee.”
“It’s not really your fault,” said Mr. Kaplan. “It’s not clear to me that you have to pay for the damage.”
“I took the items without permission, though,” insisted Mr. Siegel.
“They were intended for rent, though,” said Mr. Kaplan. “Let’s ask Rabbi Dayan.”
The two met with Rabbi Dayan. “Am I liable for the urn and flowers?” Mr. Siegel asked.
“The Gemara [Bava Kamma 97a] discusses someone who commandeered another’s boat,” replied Rabbi Dayan. “It concludes that if the boat was not intended for rent, he is considered a thief and liable for any damage to it, but does not have to pay rent. If the boat is intended for rent, the owner can demand either the rental fee or any damage due to usage, but not both, since a renter is not liable for damage due to normal use.” [Choshen Mishpat 359:5; 363:5; Sma 363:12]
“What’s the logic behind the owner having the option of charging rent or damage when intended for rent?” asked Mr. Kaplan.
“He can charge rent since the person benefitted from the use,” answered Rabbi Dayan. “Alternatively, he can charge for the damage due to use since Chazal treated the user without permission partially as a thief, who is liable for damage, or perhaps like a mazik [Nesivos 308:4; Misphat K’halacha, p.280]
“What about loss that was not from use?” asked Mr. Siegel. “The broken vases, for example.”
“The Rema [Choshen Mishpat 308:7], based on Terumas Hadeshen, rules that if the boat stands for rent, the person is not a full thief,” replied Rabbi Dayan. “Therefore, Achronim write that he is not liable for external oness, only for damage due to use. If he were to take the boat against the explicit objection of the owner, some obligate him for external oness. [Ketzos 308:3; Chazon Ish, B.K. 20:4; Machaneh Ehpraim, Gezeilah #15; Pischei Choshen, Geneivah 7:5(22)]
“Thus,” concluded Rabbi Dayan, “Mr. Siegel is not liable for the vase of flowers; he is liable for the urn, but does not have to pay rent for it.”