Unauthorized Borrowing of Food from an Agreeable Owner

‘BORROWING’ A BAG OF POTATO CHIPS

Q: My roommate is away for Shabbos. May I ‘borrow’ his bag of potato chips and replace it right after Shabbos?

The Talmud relates that three sages, Ameimar, Mar Zutra, and Rav Ashi visited the orchard of Mari Bar Issik. Although Mari Bar Issik was not there, his employee gave the sages fruit to eat. Ameimar and Rav Ashi partook in the fruits, while Mar Zutra did not. Mar Zutra seemed to be concerned that  the employee was not authorized to give his employer’s fruits to guests, while Ameimar and Rav Ashi presumed that the employer would want his guests served. When the Mari Bar Issik arrived, he asked his sharecropper why he didn’t honor the sages with even better fruits.  Nevertheless, Mar Zutra refused to eat the fruits that were offered, and explained that he was concerned that perhaps the owner did not truly want to offer him the fruits, and was doing so only because he was embarrassed to appear less generous than his sharecropper.

. Tosfos raises a basic question. When the sharecropper originally offered the fruits, he did so without Mari Bar Issik’s permission or knowledge. As such, how were the rabbis allowed to partake in the food without the owner’s permission?

Tosfos explains that this depends on the famous Talmudic discussion of ‘Yiush Shelo Midaas’. We know that when a person loses an object (it becomes an אבידה) and gives up hope of finding it, it is considered ‘yiush’ and the finder may keep it. What if a person dropped an item but does not yet know that it was lost? When he realizes that it is missing, he will certainly be Mayayesh and will lose his ownership, however, due to his lack of knowledge he has not actually been meyayesh at this time. This question is called ‘yiush shelo middaas’, (literally ‘relinquishing ownership without knowledge’). The Talmud deliberates whether the owner needs to consciously give up ownership and therefore such forms of ‘yiush’ are not sufficient (lo havi yiush) or does the fact that he will surely give up ownership when he finds out suffice (havi yiush)? The final halacha is ‘Yiush shelo midaas lo havi yiush’, that unconsciously relinquishing ownership is not sufficient.

Tosfos understands that the question of ‘Yiush Shelo Midaas’ about a lost object applies to using another person’s items without permission as well. Consuming another person’s food without permission is stealing. However, does that permission need to be explicit or can it just be assumed? Once the Talmud concludes regarding a lost object that only explicitly relinquishing ownership is sufficient, the same applies with eating the other person’s food. Only explicit permission is sufficient. As such, if the fruits belonged to Mari Bar Issik, the Rabbis would not have eaten them before he arrived and gave explicit permission. For this reason Tosfos suggests an alternate explanation of the story about the fruits, and explains that the fruits technically belonged to the sharecropper and therefore he was allowed to give them to the Rabbis.

Tosfos’s comments are very relevant to our question. According to Tosfos, knowing that an owner wouldn’t mind if you took something that belongs to him does not give one the license to help themselves to it. Express permission is necessary. As such, it would seem that it is forbidden for the roommate to ‘borrow’ his friend’s bag of potato chips. Since the owner is not present and is unaware that you would like to eat them, he clearly has not expressly relinquished his ownership. The fact that when the roommate is subsequently asked  he will certainly say he doesn’t mind is insufficient to permit taking it without his knowledge. As the discussion of ‘Yiush shelo midaas’ teaches us, it is not enough that the roommate would relinquish ownership if he knew, he needs to actually give permission. As such, it is forbidden to take them.

The Shach, however, disagrees with Tosphos and suggests that the story of the three sages is not connected to the discussion of ‘Yiush shelo midaas’. ‘Yiush shelo midaas’ is a discussion concerning a lost object. Nobody wants to give up hope and relinquish his possessions. Although when he eventually realizes that the item is lost, he will despair of recovery and be meyayesh, that occurs only when he has that actual knowledge. Until then, the item remains his and consequently, a person that finds it must return it to the owner (bi’isura asa leyado). In contrast, using another person’s object when they surely would allow it if they knew is a very different discussion. The Torah is not suspending the ownership of a belligerent owner. Rather, the owner wants his friend to use it. When the owner is forced to give up ownership we need him to actually be aware of the situation, but when the owner wants to share his possession, the wanting alone is sufficient to permit the friend to take it without explicit permission.

According to this approach, the sages were allowed to partake in the fruit even before the owner knew about their visit, provided that they were completely confident that he will sincerely be pleased with his sharecropper’s generosity. Likewise, according to the Shach, if the roommate would be happy that his friend is eating his chips, it would be permitted to do so. He does not need to consciously give permission.

As a matter of Halacha, some acharonim maintain that the Rambam adopts the lenient position of the Shach. However, the Shulchan Aruch HaRav and the Aruch Hashulchan are stringent like Tosfos.

The Shulchan Aruch HaRav asks that according to Tosphos that it is prohibited to take a friends item without express permission, why may a family member honor a guest or a poor person with some food when the head of the household is not home to give permission? Technically, the food belongs to the head of the household, and although he would consent that it be shared, there is no express permission and it should be prohibited according to Tosphos?  The Shulchan Aruch HaRav answers that  since it is common to share food with guests, there is an implied consent from the head of the household that whatever food he has may be shared. This is not yiush shelo mdas since every head of household is aware and accepts that his food will be shared with guests. In contrast, the cases above involved unusual circumstances, where either an item was lost, or distinguished guests chanced upon an orchard.

With this discussion in mind, we can return to our original question about ‘borrowing’ the roommate’s bag of potato chips. The fact that the roommate will not mind if his friend eats his bag of chips and replaces it does not necessarily make it permitted. According to the approach of the Shach knowing that he would not mind is sufficient. However, according to Tosfos it is still forbidden unless there is express permission. If it is extremely common for roommates to borrow food from each other without asking, it may be similar to the case of the Shulchan Aruch Harav; however, for this heter to apply it must be a clear minhag. If it is not completely clear, one should not ‘borrow’ the bag of potato chips without actual permission. Nonetheless, a simple way of avoiding this issue would be to ask the roommate in advance if it OK to use his items if such a situation arises. This would alleviate the entire question.

From Business Halacha, here.

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