One of the required conditions for the mitzvah of tzitzis to apply is that the tallis (on which the tzitzis are hung) should belong to its wearer. This condition results in an important question concerning a borrowed tallis. When a person borrows a tallis from his fellow, we assume that the tallis is given in a manner granting the borrower actual ownership of the tallis (see Mishnah Berurah 14:11). This is necessary in order that the borrower should be able to fulfill the mitzvah of tzitzis. The question, however, is whether or not a person may use somebody else’s talis without his permission. This is especially pertinent for unmarried Kohanim, who sometimes find themselves in need of a tallis for giving birkas ha-Kohanim—but can be of relevance for anybody who forgets/does not have his tallis for davening. Can one simply take any tallis he finds for personal use, and does this grant the borrower “ownership” of the tallis?
Using or Acquiring?
The following statement is made by Shulchan Aruch (Orach Chaim 12:4): “It is permitted to take [and wear] somebody else’s tallis and to make a berachah over it.” Even when no explicit permission was given for its use, a person is able to take another’s tallis—and even to make a berachah over it. Magen Avraham (14:8) points out a seeming difficulty with this ruling. In order for a person to make a berachah over a tallis, the tallis must belong to him. Although we may rule that a person consents to another’s use of his property for the sake of a mitzvah (Bava Metzia 29b), this falls short of consent for another to make a full kinyan—a halachic transfer of the item into his ownership. How then does the tallis become the property of the person who takes it [without permission], so that he can make a berachah over it? Because of this question, Magen Avraham comes to a far-reaching conclusion. In spite of the fact that the borrower does not become the owner of the tallis he borrows, he can nevertheless recite a berachah upon wearing it. The reason for this is that although a borrowed tallis is exempt from the mitzvah of tzitzis, the mitzvah of tzitzis nonetheless applies to it—though not on an obligatory level (see also Mishnah Berurah 14:9). Two chiddushim are incorporated in Magen Avraham’s conclusion: 1. Even though a borrowed tallis is exempt from tzitzis, a mitzvah is fulfilled by tying tzitzis strings to it (one would otherwise think that because the item is exempt from tzitzis, no mitzvah applies—just like no mitzvah is fulfilled by affixing a mezuzah to a doorpost of an exempted room); 2. Even though there is no obligation to do the mitzvah, one is able to make a berachah over its performance (according to Shulchan Aruch (Orach Chaim 17:2), for instance, women may not recite a blessing over the performance of mitzvos from which they are exempt). In fact, the author of Nesivos Hamishpat (Derech Chaim 14) disputes the chiddush of Magen Avraham, and writes that one should not make a berachah on a tallis borrowed without permission—dissenting with Shulchan Aruch who rules that a berachah may be recited.
The Case of the Wedding Ring
Yet, in contrast with the above opinion of Magen Avraham, Nesivos Hamishpat (195:1) implies that assumed consent is not only able to permit the use of another’s property, but is sufficient even for the full acquisition of the property. This emerges from the Nesivos’ understanding of Shach (Choshen Mishpat358:1), which he quotes as stating that a person can acquire another’s property based on assumed consent (Shach itself is not conclusive on this question). This opinion, which actually contradicts the above ruling of Derech Chaim, is supported by a ruling of Rambam (Ishus 5:8). Concerning items that a person is not particular (makpid) about, Rambam states that if a person takes another’s item and gives it to a woman for kiddushin (betrothal), the woman is safek mekudeshes: it is possible that the betrothal is valid (see Avnei Miluim 28:49, and Noda Biyehuda, Kama, Even Ha’ezer 59). We thus see that assumed consent can be sufficient to give somebody full acquisition of an item, an essential condition for the betrothal to be valid. Accordingly, the ruling of the Shulchan Aruch concerning a borrowed tallis can be understood simply. Because a person wishes to do a mitzvah with his possessions, we can assume his desire not only to allow the item’s use, but even to give his fellow full ownership of the tallis.
Yet, the assumption made by Magen Avraham, namely that assumed consent for the use of property is insufficient for making a full acquisition, also seems well-grounded. We find that although one may use another’s esrog for the sake of performing the mitzvah, this leniency does not apply to the first day of Sukkos, on which the mitzvah demands actual ownership of the esrog (Shulchan Aruch 649:5). The reasoning behind this distinction echoes the statement made by Magen Avraham. Although a person can assume his fellow’s consent for the use of the esrog, this consent falls short of agreement for the enactment of a kinyan. I may use my fellow’s esrog, but I may not bring it into my ownership—thus I can use another’s esrog on the last days of Sukkos, but not on the first. We are therefore presented with a contradiction. On the one hand, assumed consent is not sufficient to grant ownership of an esrog. On the other, it is sufficient to grant ownership of a wedding ring (at least on the level of a safek)—and perhaps even of a tallis. How can the two be resolved?
Different Types of Items
We might suggest that the solution to this issue is the type of item involved. Rambam, it can be argued, refers not to golden rings, but rather to items that a person does not mind if others take to be theirs, such as leftover fruit strewn on a field. Although the items have monetary value, and although they are not actually hefker (ownerless), the owner’s general permission for others to take the items is a mental state that enables a full kinyan to take place. We find a similar concept of a general state of mind fulfilling the necessary daas (mental intention) for a full kinyan in the power of a person’s courtyard (chatzer, referring to his general domain) to make a transfer of property. Explaining the unique property of kinyan chatzer, whereby a person is able to acquire an item even without his prior knowledge of it, Shita Mekubetzes(Bava Metzia 10b, citing from Rash di Vidash) writes that the general state of mind, whereby a person expects his domain to make acquisitions on his behalf, is sufficient. Based on this idea, it is possible to distinguish between the case of the esrog and the halachah of Rambam. Whereas in Rambam’s case of kiddushin the owner of the item in question has a general state of mind allowing others to acquire his property, no such state of mind exists with regard to an esrog. Although a person is content that another should perform a mitzvah with his property, he is not prepared that another should transfer the esrog into his ownership.The Shul Tallis
This might also allow us a possible explanation for the question of the borrowed tallis. It is possible that the Shulchan Aruch does refers specifically to a tallis that is always in shul, and which a person is content that others should make use of. Because in days of old it was common for people not to have a tallis, we may assume a general state of mind whereby the owner is content that people should not only use his tallis, but even acquire it for themselves (on condition they replace it when they finish). In the case of the esrog, however, where the act of borrowing is a one-time event and there is no general state of mind, the esrog cannot transfer ownership. In light of this, there is room to doubt whether or not the halachah of a borrowed tallis, and certainly the corresponding halachah of borrowed tefillin, applies today. In our day and age, there is virtually no shul attendee who arrives without his personal tallis and tefillin; if they do, the event is a one-time occurrence, and not a regular state of affairs. In addition, most people today do not keep their tallis in shul. As a result, it is hard to point out a general state of mind that permits others to take tallis and tefillin for personal use. Although as a one-time deed every owner consents for his tallisto be used in performing a mitzvah, this would be insufficient to give the borrower actual ownership of the tallis, and it would therefore be wrong to recite a berachah over it.
While on the subject, it is also worth noting that many of the assumptions found in Chazal and poskim concerning a person’s mental intentions require reanalysis in light of social changes. Whereas in olden times it was permitted to use another’s tefillin but prohibited to read another’s book (for fear that it should tear; see Mishnah Berurah 14:16), today the contrary would seem closer to a person’s intentions: unlike in the past, today people are more ready to lend out books than they are tefillin. Thus, while Mishnah Berurah (14:16) writes that he cannot see any reason for its being permitted, the general custom today is to use others’ books (at least in yeshiva or in shul) unless the owner specifies a prohibition on their use. Today’s books are relatively cheap, relatively well-bound, and usually easily replaceable, setting them aside from books of yore. With changing circumstances our mental intentions alter, and the halachah—in this case—is also liable to change. Of course, this article only means to offer halachic insights, but is not intended as actual halachic rulings.