Reuven left his new umbrella in kollel, and at the end of the day he realized that someone else took it and left in its place an older umbrella and he is certain that this second umbrella is not his, is Reuven allowed to use this umbrella? Similarly, what would be the other way round, if Reuven’s umbrella was old, and he finds in its place a new umbrella, is Reuven allowed to use this new umbrella?
If People Are Not Particular About Others Using Their Item, the Minhag Is to Be Lenient
The Shulchan Aruch (Choshen Mishpot 136:2) writes: If one’s item got swapped in a house of morning, or at a party, one is not allowed to use it. And when the rightful owner comes, one must give it to him, even if the owner of the place where it was left in lost his own item.
The Kesef HaKodshim adds: Even if the item is a mitzvah item such as tallis or tefillin, one is not allowed to use it.
However, the Aruch HaShulchan (136:2) writes: The minhag is that in large places, where many people gather and people leave their galoshes (rubbers) in the corridor, and it’s very common for people to get mixed up which set is theirs, there is no hakpodah, and it’s ok for people to use each other’s, until they find the rightful owner and swap them back, and there is no problem of theft, as this is the accepted minhag.
The Kesef Kodshim says more or less the same thing, and adds, that one can be lenient with items that people aren’t so makpid on if they don’t get back their specific item, and it’s not only galoshes one can be lenient with, rather, it applies to all items that people aren’t makpid about.
Why Is It Not Considered Theft to Use Someone Elses Item Without His Explicit Permission?
R’ Elyashiv (cited in Mishpat Aveidah, siman 260, Sha’arei Tzedek s.k. 169) explains: When Reuven the owner doesn’t notify anyone about his loss, we can assume that he doesn’t know about it, and he is using someone else’s items without permission. Therefore, Shimon whose item got swapped with Reuven’s may use Reuven’s item as a sort of payment for the fact that Reuven is using his item. However, this would depend on a machlokes Rishonim (see Machaneh Ephraim, Hilchos Gezeilah 9) if one has to pay rent if he uses an item which he never realized he stole.
R' Moshe Sternbuch (Teshuvos V’Hanagos 6:288) brings the Shach by yiush sheloi mida’as, which says that even though normally we say yiush sheloi mida’as is not considered yiush and it is forbidden for one to use the item as it entered into his hand in a forbidden manner, and if the owner would know where it is now he wouldn’t be mayayesh, nonetheless, in a case where we know he isn’t makpid, then it is considered that it came into his hand in a permissible manner.
He then writes that although the Nesivos (195 and 197) and Machneh Ephraim (beginning of Hilchos Gezeilah) rule like the Shach, the Shulchan Aruch HaRav (Hilchos Aveidah) and Ketzos HaChoshen (262 and 209) hold like Tosfos (Bava Metzia 22a) that it is forbidden to eat the fruit belonging to a friend without his knowledge, even if one is certain that if his friend would be here he would let, nonetheless, since he isn’t here, and he hasn’t given permission it is forbidden.
However, R’ Moshe is mechadesh, that Tosfos is only stringent, in a case where if the owner would be present he would simply agree to giving, but nothing more then agree. However, in a case where if the owner was present he would want to give it to someone else, then Tosfos would agree that one could use it without his friends permission. In our case Reuven wants Shimon to use his item, otherwise he would have to pay for his usage of Shimon’s item, therefore, Shimon may use it.
R' Shlomah Zalman Auerbach Holds, That One May Use the Swapped Umbrella, Even If It’s More Expensive
R’ Shlomah Zalman rules (Halichos Shlomah, Tefillah 19:11) that since the Aruch HaShulchan is lenient with galoshes, as this is the accepted custom with such items, the same thing applies to an umbrella, and he adds: That one can be lenient even if the swapped umbrella that he finds is worth more than the one his friend took.
The Igros Moshe and Shevet HaLevi Are Lenient with Coats and Hats Aswell
The Igros Moshe (Orach Chaim 5, 9:7) writes: Although the Aruch HaShulchan only brings the example of galoshes, the same applies to a coat (see also Teshuvos V’Hanagos).
The Shu”t Shevet HaLevi (6:238) writes, that it applies to hats as well. Although he adds (11:329) that only if both hats are the same, if, however, they are different sizes, then the owners are certainly makpid.
However, the above is only if this is the accepted minhag, or there is no known minhag otherwise. The Igros Moshe adds, that even in a place where this is not the accepted minhag, it’s a good idea for the leaders of the kehillah to make this the minhag, by putting up signs and publicizing to all the mispallelim that if items get mixed up, people may use each other’s until they are returned to their rightful owner.
The Ben Ish Chai Is Stringent If the Swap Was Accidental
The Ben Ish Chai (Year 1, Ki Seitzei 10) is only lenient if the swapper did it on purpose, i.e. he took a new umbrella and left behind in its place his old one, if, however, it was done accidentally, i.e. they are both identical, or he took the bad one and left a better one in its place, then it is forbidden to use the item and it should be left in its place.
Paying Rent When Using Another Person’s Item
In a place where the minhag is that people don’t use other peoples items even when they are accidentally swapped, or when it comes to items people are makpid on, or a case when Reuven used Shimon’s item as he thought Shimon swapped with him, and in the end it turns out he didn’t, in all these cases the Igros Moshe (Orach Chaim 5, 9:7) writes that one must pay the rightful owner for what he benefited. Even if originally he was allowed to use the item, because he assumed it was swapped and not stolen, however, in the end it turns out he wasn’t, therefore, it is logical that he must pay for the benefit he gained. However, see Shu”t Shevet HaLevi (6:138) where it’s clear that he disagrees.
