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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?

  • אין שליח לדבר עברה but tosfot in Baba Kama says that if he didn't have in mind that it's an avera there is Shaliach lidvar avera Sma ruled as Tosfot – kouty Apr 4 at 10:28
  • "the person who accidentally 'lied', the 2nd person": the person who lied is the second person in your story. – msh210 Apr 4 at 14:32
  • Why so complicated - one says it's a Hefker and the other takes it. – Al Berko Apr 4 at 17:00
  • @AlBerko I "simplified" the case. But, these things happen frequently all due to misunderstanding. Imagine that this wasn't milk but a far more expensive / significant item. The owner can have a major loss or problem. In this case, the milk was meant for an executive meeting the next day. The HR person said, "help yourself." That person understand that it was hefker when it actually wasn't. – DanF Apr 4 at 17:07
  • THat happens al the time at the Yeshivos and people are really pissed, but that just reminds how clear the rules have to be. I daven at the Shapell's in Jerusalem and I witness the evolution of the pantry signs over 10 years, starting from no signs, then "put your name", then "unmarked items considered Heker" and on. – Al Berko Apr 4 at 17:39
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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 introduction of the question 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).

  • So the drinker made the sin. Regarding stealing, 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 Adam needs to pay dammage even if he is Ones (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 one broke utensils, one 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: )

  • 3
    I don’t think we can apply שליח לדבר עבירה here, as the sender didn’t tell the thief to take it; he just told him it was okay. I‘d argue just the opposite: while a person is obligated on אונסים, he’s not obligated on אונס גמור. The thief had no way of knowing he’s not allowed to take it. I’m not well-versed enough in גרמא vs. גרמי to say whether the first guy should be liable; this seems awfully direct, but I’m not convinced it’s direct enough. – DonielF Apr 4 at 14:37
  • I said it's not shaliah anyway. But even in a case of shaliah the sma said that here there is shaliah e.g if he says "it's mine, please drink". Some rishonim don't agree. But in this case it's not similar. Because he gives an information. – kouty Apr 4 at 14:47
  • Right, so the second guy is relying on the first one, which makes him an אנוס גמור, no? There’s no way that the second guy could know that the first guy was lying. – DonielF Apr 4 at 14:53
  • I think that to choose to take milk is a responsible act. He is stoling. The first person is only not attentive – kouty Apr 4 at 14:56
  • Agree with Doniel - that's wasn't a Shlichus - the person benefited himself. – Al Berko Apr 4 at 16:59
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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).‏"

  • 1
    1. Isn't the whole point of the question determining who has to pay? המוציא מחברו only applies if even after everything is considered there's still not enough evidence to charge any party. 2. But an אונס גמור is exempt. If I fall asleep next to a lamp and break it, I'm liable; if I fall asleep and then someone placed the lamp next to me and I break it, I'm exempt. Maybe that's the same here: there's no way that the taker could have known. 3. I'm unclear on what you're saying here. Are you trying to use עדות שקר to say the first guy is liable or exempt? (con't) – DonielF Apr 4 at 18:02
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    4. We pasken like the Mishnah (Gittin 29a) that if I give you permission to use my things, you're not allowed to give that right to someone else, and like R' Yochanan (BM 36a) that if you do it anyway, you're liable for everything. The owner can claim אין רצוני שיהא פקדוני ביד אחר – I'm okay with you having it, but not him. 5. Clearly the OP is assuming a case where there's no preexisting laws/customs to the effect, or else the question is moot. 6. Are you sure this is גרמא and not גרמי? – DonielF Apr 4 at 18:05
  • @DonielF 1. No, why do you start with an assumption of stealing - just because the owner says so? המוציא - he's one to prove! I don't blame you, just like little kids, we start with conclusions instead of investigation. That's exactly my point - go back and start from the very beginning. 2 True, I said that if the owner will be proven right the taker should pay even if he was Shogeg – Al Berko Apr 4 at 20:06
  • @DonielF 3. How do we treat the testimony of the soliciter at all? Was he right, Shogeg or Mezid - it is unclear, don't take it for granted! As I said, he might turn out right and the owner changing his story, did you think about that case? – Al Berko Apr 4 at 20:07
  • @DonielF 4. Wrong. It is not borrowing it's consuming, meaning the milk was given away totally! So the owner allowed the soliciter to consume it and the milk is now the property of the later. Don't you agree? – Al Berko Apr 4 at 20:09

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