Some Hopkins students keep their tefillin in our beit midrash which is great because it means that they feel at home. May one who finds himself one day stranded without tefillin use one of those pairs?
The Mishna[1]presents a difference of opinions between Rabbi Yehuda and the sages regarding the responsibility for the breaking of a flask during an oil purchase[2]. The Talmud[3] understands that their argument is stemming from a much broader issue: is one who uses an object without the owner's knowledge considered a robber[4] [5].
Maimonides[6], the Shulchan Aruch[7] and all major codifiers rule in accordance with the sages' opinion, i.e. one who borrows an object without the owner's knowledge is a robber. The Talmud[8] seems to suggests that if a person barrows an object in order to fulfill a mitzvah the borrower would not be considered a robber. The reason for this would be that we can argue that the owner would be pleased that his property be used for such purposes. The Talmud rejects this possibility in conclusion and rules against it. Thus it seems to be clear that it is forbidden to use someone else’s tefillin without permission.
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| When can you use it? |
Surprisingly, this issue is a little more complex. Rabbeinu Yossef Chaviva, the 14th century scholar, writes in his Nimukei Yossef[9], that one may use a talit[10] that is found in a place where people usually leave their talitot. His reasoning is that a talit is an object that is not harmed by a single use. The rationale of this ruling is that when the object won't be damaged we can accept the Talmud's above-mentioned suggested understanding, i.e. when speaking of a tool that is used for a mitzvah we may assume that the owner would not object to it being used[11].
13th century Rabbeinu Peretz ben Rabbi Eliyahu[12] adds to this and says that if the talit is folded one may not use it as this indicates that the owner is extremely conscious of adequately maintaining his possessions. However, another 13th century scholar, Rabbeinu Mordechai ben Rabbi Hillel[13], suggests an alternative ruling in a situation that the talit is folded: if the user will fold it back so that it is exactly as it was he is permitted to use the talit. It is important to mention that Rabbeinu Mordechai himself says that he is not certain that we can rule this way.
The fundamental rules that we can extract from these sources are as follows:
1. Generally speaking, one may not use someone else's objects without permission even with the intention of returning the object fully unharmed.
Rabbeinu Asher ben Yechiel[14] writes that the custom is to use another's talit and that if it was found folded it should be returned the same way, and the Shulchan Aruch[15] rules in accordance with this custom[16].The Rama (ibid.) adds that this is the case with tefillin as well, but not with books as they may be harmed by use.
On the other hand, both Rav Yechiel Michel Epstein[17] and Rav Yossef Chayim of Baghdad[18] write that in their time most people would not be pleased to know that someone used their talitot. Rav Yossef Chayim adds that the same is correct for tefillin and that he himself does not appreciate others using his tefillin.
Moreover, Rav Eliezer Waldenberg[19] says that even when borrowing tefillin directly from their owner one must be sure that the owner agreed to let him use the tefillin wholeheartedly, as sometimes people are disgusted by the thought of sweat being transferred from one person to the other via tefillin use[20]. This is to be done by listening intently to the owner's response and using intuition and common sense to assess whether or not the response was sincere. Now, how is one to do this if he is borrowing without the owner's knowledge?
Rav Waldenberg acknowledges that the Shulchan Aruch ruled that one may use another's tefillin, but he claims that this was relevant in the past when tefillin were much cheaper and therefore people weren't so strict about their use. Today when tefillin are so expensive people have greater reservations about other people using them.
I'd like to add two points that I believe have become an issue in today's world:
1. The method for creating tefillin in modern times involves innovative technologies, which enable a preciseness of shape that is truly remarkable and has never been reached in the past. Some people are more aware than others as far as caring for their tefillin and making sure the corners are unharmed. Thus we can possibly claim that it is forbidden to use someone else's tefillin as they may belong to someone who takes extra care for the shape of their tefillin.
2. Bathing is done much more frequently today than in the past. Many people in the western world shower first thing in the morning. If one puts tefillin on wet hair there is a chance that the shape will be ruined and even that water will erase the parshiyot. Some people are more aware than others of the importance of keeping one’s hair dry while using tefillin.
In my opinion, all the scholars that I have quoted agree that it has to be clear to the person who wants to use the tefillin that the owner would agree to it. To my understanding, their differences of opinions are rooted in their interpretation of different realities and situations. As I have shown, because there may be different reasons that someone would not agree to unattended use of his tefillin, it is very important that one who wants to use another's tefillin must take all of these issues into consideration.
I personally believe that each community should make its own rules regarding this issue so that members of the community know the full consequences of leaving their property in the public domain. I very much hope that we too will set these rules clearly and efficiently in our Hopkins community.
[1] Bava Batra 5:9[2] In ancient times, one who bought oil or perfume would bring his own utensils to the seller.[3] Bava Batra 88a[4] It is interesting to note that the Talmud uses the phrase ''gazlan" meaning robber as opposed to the phrase "ganav" meaning thief.[5] The Talmud explains the circumstances in the Mishnah to be such that a small child brought the flask to the seller and he, the seller, used the flask for his own personal benefit. In this case the owner of the flask is absent when the seller borrows it, and the child cannot be considered the owner's shaliach.[6] Hilchot Gzeila V'aveida 3:15[7] CM 359:5[8] Bava Metzia 29b[9] Halachot Ketanot [Menachot] Hilchot Tzitzit p. 12a[10] Prayer shawl[11] The object discussed in the Talmud is a sefer Torah which wears out with use as in those days it was used for studying which can be extremely extensive and intensive.[12] Sefer Mitzvot Katan 31 footnote 20[13] Halachot Ketanot [Menachot] Perek Ha’t’chelet 550
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