Q: At a recent family reunion held over a Shabbos, my children surprised me on Friday with an expensive silver becher as a gift. I rushed to tovel it before Shabbos, but the mikveh for keilim (utensils) was already closed, so I decided to tovel it in the regular mikveh. I made the brachah outside the room of the actual mikveh because a brachah may not be said inside that room (see Orach Chaim 84:1 and Chayei Adam 5:10). When I entered the room with the mikveh, I noticed a sign stating that keilim may not be immersed there under any circumstances. However, because I had already recited the brachah, I felt that I had no choice but to tovel the becher. Was my decision justified, and was the tevilah valid?
A: It is forbidden to tovel utensils in the regular mikveh against the rules set forth by the mikveh administrators. A person who uses a mikveh in this fashion is a sho’el shelo midaas (borrower without permission), akin to a thief (Pischei Choshen, Geneivah 6, fn 74; see BHI #496).
Even so, if someone did tovel something against the rules, he is not required to tovel it again in a mikveh that he is authorized to use. (He must ascertain, however, that the regular mikveh was actually kosher for tevilas keilim, because not all men’s mikvaos may be used for keilim.)
There are two reasons why such a tevilah could possibly be invalid: (1) It is a mitzvah habaah b’aveirah, because the person was able to do the mitzvah only through the sin of theft. (2) Some Amora’im (Temurah 4b) rule that an act done in contravention of the Torah is not effective — “ee avad lo mehani.”
In your case, neither of these reasons apply.
Besides the mitzvah aspect of tevilas keilim, this immersion also renders the utensil kosher for use. With regard to this second aspect, there is no din of mitzvah habaah b’aveirah, because even if a utensil is toveled without intent — e.g., a strong wind blew it into a mikveh — it is valid for use (Taz, Yoreh De’ah 120:16 and Shach ibid. 28). Therefore, although a person who toveled a utensil in a mikveh against the rules did not fulfill a mitzvah, the utensil is still valid for use (see Sdei Chemed, mareches mem 77:17; Shu”t Maharshag 3:19; Nasan Piryo, Sukkah 30a).
The principle of ee avad lo mehani also does not apply, because the tevilah would have been effective even without human involvement (see Tiferes Yaakov, Chullin 14a sv “shechitaso”; Kovetz He’aros 74). In addition, some Poskim (see Shu”t Harav Akiva Eiger 1:129 and Nesivos 208:2) write that we do not say ee avad lo mehani if rendering the action ineffective will not undo the sin (see Taharas HaTorah [Erlanger] 2:7, fn 46).
Furthermore, it would seem that in this case, it was permissible for you to tovel the becher to avoid ending up with a brachah l’vatalah (unnecessary brachah), because there is an umdena (presumption) that although the mikveh’s administrators forbade immersion of utensils, they would not insist on maintaining this rule in a case in which someone would inadvertently be guilty, retroactively, of making a brachah l’vatalah.
Generally speaking, one may not use someone else’s object, even if he assumes that when the owner realizes, he will not mind (C.M. 262:3, cf Shach 260:26). Tosafos (B.M. 22a, sv “Mar Zutra”) therefore rules that one may not eat a friend’s food without permission under the presumption that the owner will not mind, because even if the presumption proves to be correct, at the point when he wants to eat it, he does not have permission, so doing so constitutes theft (cf Shach C.M. 358:1; see BHI #440).
Why, then, can we rely on the aforementioned presumption regarding the mikveh administrators in your case?
The Poskim state that using someone else’s possessions under such a presumption is prohibition only if that item will be consumed in the process, such as in the case of eating someone else’s food. But if someone wants to borrow an object that he presumes the owner would allow him to use and then return it intact, he is permitted to do so (Minchas Pittim 358:4).
Furthermore, even in a case in which the item will be consumed, some Poskim write that the prohibition applies only when the owners would consent only de facto, once it was already used. In this case, however, where the mikveh administrators would want him to use the mikveh in order to avoid a bracha l’vatalah, he may use it (See Erech Shai 308:7).
