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Hilchos Choshen Mishpat

Volume III : Number 6

Breaking And Entering


Question:

Reuven is in the process of moving from one city to another. He arranges for a moving truck to come on a specific day to move his furniture and belongings. While they are moving his things, Reuven suddenly realizes that he has more furniture stored in the communal storage room in his building. However, the only neighbor who has the key to the communal storage room is out of town. To reschedule the movers for another day would cause a considerable financial expense for Reuven.

In this situation, is there any way that Reuven would be permitted to break the lock on the storage room, and would he have to replace the lock or pay the value of an equivalent lock if he does so?


Answer:

    Reuven is permitted to break the lock on the storage room. However, this is only if he purchases a new lock of equivalent value _before_ breaking it, and immediately replaces the lock after breaking it. He should then give the keys to the new lock to one of the other residents of the building, so that the resident can give the keys to the neighbor in charge of the storage room upon his return from his trip. (1)


    Sources:

    (1) The Shulchan Oruch (Choshen Mishpat 378:1) writes: "It is forbidden to damage your friend's property. If one did so, even if he (the damager) derived no benefit from the damage - he is obligated to pay for the entire damage, whether he damaged inadvertently or deliberately."

    The SM"A there (1) explains that by starting off talking about what is forbidden and concluding by talking about payment, the Shulchan Oruch is trying to teach us two separate things. First of all, it is forbidden to damage someone even if your intent is to reimburse him, just as one may not steal with the intent to pay back (Choshen Mishpat 348:1). Secondly, the obligation to pay for damages applies even if you had no benefit from the damage that you did, and even if it was completely unintentional.

    In our case, it seems reasonable to say that the neighbor with the key in his possession was not negligent by leaving for a short time and not leaving the key with another neighbor. He cannot be expected to be constantly in his home, and generally a person would give some forewarning when he must move items from storage. Therefore, since the lock is serving the purpose that it was intended for, and it is jointly owned by all residents of the building, none of the residents would have permission to break it, even if he intends to pay to replace it (contrary to our answer above).

    The reason for our answer above is because in our case, where there would be a considerable loss of money to Reuven if he would not break the lock, we may even venture to say that if Reuven buys only a lock of _equivalent value_ before breaking in, he would still be permitted to do so. The Mishna in Bava Kamma (114a) discusses the case of a beekeeper whose bees (which are expensive) have taken flight, and have taken up residence in a little hut (which is inexpensive) belonging to his neighbor. The only way for the beekeeper to retrieve his bees is by moving the entire hut onto his property, since, if he would try to move only the bees, they would just fly off again. There is disagreement there in the Mishna between Rabbi Yochanan Ben Berokah and his son, Rabbi Yishmael if the beekeeper is permitted to damage the neighbor's hut by uprooting it and transporting it back to his own property without explicit permission from the neighbor. The Rema (Choshen Mishpat 274) quotes both opinions, and does not say which we should follow.

    It would seem that our case is very comparable to the case of the beekeeper, in that, at least according to Rabbi Yishmael, he may damage his friend's property to save himself from a loss as long as he intends to pay. We might even be able to argue that even according to Rabbi Yochanan Ben Berokah who does not allow the beekeeper to uproot his friend's hut without permission, this is because the friend will have to go and collect the money and rebuild the hut again, something that he has no interest in making the effort to do. In our case, if Reuven would have an identical lock ready to replace the one that he will break, none of the owners of the lock are losing money nor will they have to make any effort to fix the damage done. They will have no loss at all, and Reuven will be saving himself from great loss. It would seem that all would agree that the other residents would be required to permit Reuven to break the lock and retrieve his items from storage, based on the principle of Kofin Al Midas Sedom - we force people to give up certain rights in a case where someone else will benefit and they have no loss from this. (See Business-Halacha Vol. II No. 23 Midas S'dom / Traits Of The Sodomites. To retrieve that class, send a message to majordomo@torah.org containing the following: get business-halacha business-halacha.981104 .)

    However, if Reuven would acquire a lock on behalf of all of the building residents that is of _greater value_ than the lock on the storage room _before_ breaking it, he would be permitted break it according to all opinions. This Halacha is stated in the Rosh in Bava Kamma (Perek HaKonais 12), and in the Shulchan Oruch (Choshen Mishpat 359:2). Since it is a Zechus (benefit) for the residents to have a better lock, he can acquire it on their behalf, based on Zochin L'Adam Shelo B'Fanov - something beneficial can be acquired for another person even without their knowledge and consent. Consequently, by breaking the lock of lesser value and immediately replacing it with a lock of greater value, no damage has been done.

    -------------------------------------------------------------------------

    This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval. His columns have recently been compiled and published in a three volume work called Mishpetei HaTorah, which should be available from your local Sefarim store.

    Feedback is appreciated! It can be sent toatendler@torah.org.


    This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

    We hope you find this class informative and stimulating! If you do not see a subscription form to the left of the screen, access the Advanced Learning Network to subscribe to Business-Halacha.

    For information on subscriptions, archives, and other Project Genesis classes, send mail to learn@torah.org for an automated reply. For subscription assistance, send mail to gabbai@torah.org.

    Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!

 






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