Who is responsible for accidental theft caused by a false claim?

Question

There's a public pantry in one's office that has a shared refrigerator. Someone opens the fridge and sees a container of milk that is usually not there. He asks a co-worker if he can use it and he says, "I saw someone in HR put it there, yesterday and he said it's leftover, anyone can use it." So, the other person helps himself to some milk.

Later in the day, the 2nd person discovers that no one from HR had allowed anyone to take that milk. You discover that the person accidentally lied to you because he misunderstood what the HR person had told him, which was "You can use it" and that meant, just him. But he understood it to mean "anyone can use it."

Now that the milk was taken, who is responsible to pay for it - the person who accidentally "lied", the 2nd person, both, no one because it was accidental?

Answer 1

The drinker is responsible.

See SA CM 182.1 SMA sk2

חוץ מלדבר עבירה: דדברי הרב ודברי התלמיד דברי מי שומעין ויכול המשלח לומר סברתי שלא ישמע לי לעשותו לכך אין המשלח חייב אבל אם אין השליח בר חיובא לא שייך האי טעמא: ‏

There is no shlichut for a sin out of for an Avera. Because the Meshaleach can say, I was thinking that the Shaliach will not agree to make the sin.

So if someone says "Take it, it's mine." There is Shlichut according to the SMA.

But anyways, in your case the co-worker didn't say, "Take it." There is no Shlichut. So, the Gezel is only the responsibility of the taker.

I understand from comments (thanks to @DonielF and @DanF) that my answer isn't clear enough.

• In the first part of the answer I wanted to exclude the lack of responsibility of an eventual "Meshaleach" according to the rule written in SMA, despite the known rule of "Ein Shaliach lidvar Avera" (there is no shlichut for a sin)

• In the case of the of the OP, even with the rule of the SMA, the co-worker is not responsible as explained above. The drinker acts following his own willing. (To understand this I recommend learning the first mishna of the 6th chapter of Me'ila). This Mishna talk about Meila, an exception to the rule of Ein Shaliach Lidvar Avera. The cases described in the Mishna define when there there are truly a function of sender and a function of agent, and when it is not the case.

If an agent has fulfilled his agency, the sender is guilty of sacrilege, but if he has not carried out his agency, he himself is guilty of sacrilege.

How so? If he [the employer] said to him: “Give meat to the guests” and he offered them liver, “[Give] liver” and he offered them meat, he himself is guilty of sacrilege.

If the employer said to him: “Give them one piece each,” and he said to them: “Take two pieces each,” and the guests took three pieces each, all of them are guilty of sacrilege.

1. If he [the employer] said to him, “Bring me [something] from the window or from the chest,” and he brought it to him [from one of these places] even though the employer says, “I meant only from that place” and he brought it from the other place, the employer is guilty of sacrilege.

2. But if he said to him, “Bring it to me from the window,” and he brought it from the chest, or “from the chest” and he brought it to him from the window, the agent is guilty of sacrilege.

• So the drinker made the sin. The rule regarding stealing, is that one needs to pay, wether he is aware of the sin or not.

As @DonielF noticed, in Bava Kama, stealing is included in some Berayitot as av Nezikin and a man needs to pay dammage even if he didn't it intentionally. (There is an exception in Yerushalmi if someone place an object near a sleeping man and this man broke it in his sleep movements). Even if when saving oneself from a murder someone broke utensils of his friend, he needs to pay meykar Hadin (see BK 117b and Rashi ולא מן הדין. שהרי המציל עצמו בממון חבירו חייב כ''ש מציל אחרים בממון חבירו: )

Answer 2

I commented that you complicated the case a lot, so it's not a simple case but let's take it part by part.

1. המוציא מחבירו - you imply one has to pay straight away, but it is not clear who has the burden of proof. The owner claims it's his the taker claims it was a Hefker, therefore the owner has to prove that in such a case everything in the fridge is privately owned. It might be commonly accepted that unlabeled items become Hefker.

   Another point would be the owner's obligation to prove he's always clear giving orders (see #4). If the solicitor says he was definitely Hefkering and the owner says he didn't - it's his word against another - so there's no case to start with.

2. אדם מועד לעולם... אפילו שוגג so even if the taker was intentionally deceived, he's liable.

3. עדות שקר - actually the solicitor does not have to back off after hearing the owner's clarifications, he can claim the owner is lying and he definitely heard him Hefkering that milk.

4. זכויות - if the owner admits he was Mezake this milk to the solicitor, the later has the right to do with it as he wishes, including giving it as a Matanah to the taker. Case solved.

5. מנהג המדינה ומנהג המקום - let the office decide. Everything monetary depends on Smichus Daas, so whatever is widely accepted in the office/neighborhood/town/country will be the solution for the case.

6. עצה רעה and לפני עוור - while it is a mild offense as there's no Maase it's not payable, it is not even Gromeh. There's a broad range of those from a wrong choice to intentional fraud and cheating. However, if the solicitor does not profit from that advice he's not liable. If it is intentional it might override ארור משגה עור בדרך" (דברים כז, יח).‏"

Answer 3

Now that the milk was taken, who is responsible to pay for it - the person who accidentally "lied", the 2nd person, both, no one because it was accidental?

The person who accidentally "lied"

He would not be responsible to pay for the milk, he did not steal it*.

The 2nd person

Assuming by 2nd person you mean the drinker (it was unclear to me) he would have to pay, s he was the person who stole the milk.

Both

There is no reason both would have to pay, only one of them took somebody else's property.

No one because it was accidental

Even if you steal something by accident you still have to replace it.

*other answers mentioned ein shlichus lidvar aveira, however that isn't applicable as the drinker is not a shliach, he is an independent actor.