One of the prerequisites for fulfilling the mitzvah of tzitzis is that the garment on which the tzitzis are hung—the tallis we wear in shul, or the tallis katan we wear throughout the day—must belong to the person wearing it. This condition results in an important question concerning a borrowed tallis: Can the mitzvah of tzitzis be fulfilled by a tallis that a person borrows from somebody else?
When a person borrows a tallis from somebody else, we assume the owner of tallis grants the borrower halachic ownership of the tallis.
The Rosh (Chullin 8:26) explains that since this is required for the borrower to fulfill the mitzvah of tzitzis and to recite a beracha on wearing it, we assume that a loan includes a halachic acquisition from lender to borrower (on condition that he gives it back), so that the purpose of borrowing the tallis will be realized.
Is it permitted to use somebody else’s tallis without his permission? This question can often be relevant for unmarried Kohanim, who find themselves in need of a tallis for birkas ha-Kohanim, but it is relevant to anybody who forgets or does not have his tallis for davening. Can a person simply take any tallis he finds? And does the same apply for other mitzvah items?
These questions, among others, are discussed below.
Using or Acquiring?
As a rule, it is forbidden to use or borrow an item belonging to somebody else without his permission. This is referred to as sho’el shelo mida’as, borrowing without permission, which the Gemara and poskim classify as theft (gezel). The Rema rules, “One who takes his friend’s donkey without permission and works with it, even if he intends to pay him a rental fee, is stealing.” (Choshen Mishpat 308:7)
However this does not apply to a tallis. Concerning using somebody else’s tallis for davening, the Shulchan Aruch writes: “It is permitted to take [and wear] somebody else’s tallis and to make a bracha over it” (Orach Chaim 12:4). The ruling clarifies that even when no explicit permission was given for its use, it is permitted to use another person’s tallis, and even to recite a bracha over it.
The reason why it is permitted to use the tallis is because of a principle, also ruled by the Gemara, whereby “a person is happy that a mitzvah should be performed with his property” (Bava Metzia 29b). Because people want their property to be used in mitzvah performance, it follows that a person can assume the owner of the tallis is happy for him to take and use the tallis (provided of course he puts it back after using it). This is why it is permitted to take the tallis and use it.
Nonetheless, the Magen Avraham (14:8) points out a seeming difficulty with this ruling. For a person to fulfill the mitzvah and recite a bracha over the tallis, the garment must belong to him. As noted above, when a person grants explicit consent for somebody else to use his tallis for the sake of a mitzvah, this is assumed to include an agreement to make a transfer of property rights to the borrower, which are returned after using the tallis (as explained by the Rosh, Chullin 8:26).
Yet, the Magen Avraham writes that this can only apply when a person gives explicit permission to somebody to use his tallis, but not to a tacit or implied consent that draws from a general agreement for others to use his property for mitzvah purposes. If a person takes another’s tallis without explicit permission, how can he recite a beracha over fulfilling the mitzvah?
Because of this question, the Magen Avraham comes to a far-reaching conclusion. Even though the borrower does not become the owner of the tallis, he can nevertheless recite a beracha 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). Tosafos (Chullin 110b) also mentions the option of reciting a beracha on a borrowed tallis (which the wearer does not own) and, after explaining why it seems problematic to recite a beracha, concludes nonetheless that “one who recites a beracha does not lose out.”
Two chiddushim are incorporated in this conclusion. First, although a borrowed tallis is exempt from tzitzis, a mitzvah is nonetheless fulfilled by tying tzitzis strings to it. One might 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 exempt room. And second, although there is no obligation to perform the mitzvah, one is able to make a bracha over its performance. The Shulchan Aruch disagrees. According to the Shulchan Aruch (Orach Chaim 17:2) women, for instance, may not recite a blessing over the performance of mitzvos from which they are exempt. (The Rama disagrees and it is the custom of Ashkenazim to make a bracha.)
In fact, the author of Nesivos Hamishpat (Derech Chaim 14) says it is better not to rely on the ruling of the Magen Avraham, preferably one should not make a bracha on a tallis borrowed without permission.
Taking an Item for a Wedding
It is interesting to note that the same author, in Nesivos Hamishpat (195:1), rules in a different context that assumed or tacit consent not only permits the use of another’s property but is even sufficient to constitute the full acquisition of the property. This emerges from the Shach (Choshen Mishpat 358:1), who states that a person can gain title over another’s property based on assumed consent.
This opinion (which is unlike the above ruling of Derech Chaim) is based on a ruling of the Rambam (Ishus 5:8), which relates to items that a person is not particular (makpid) about. An example of this is a date or other such item of food, which people are generally happy to allow somebody to take. Concerning such items, the Rambam rules that if a person takes somebody else’s property and presents it to a woman for kiddushin (betrothal), the woman is considered doubtfully betrothed (safek mekudeshes): it is possible that the betrothal is valid.
Most commentaries understand that it is possible that the person using the item gains full possession of it, and this is what is in doubt (see Beis Shmuel 28:45, citing also Bach and Taz; see also Avnei Miluim 28:49 and Noda Biyehuda, Kama, Even Ha’ezer 59). According to others (see Mishnah Lemelech, Ishus 5:8), the item certainly transfers into the taker’s possession, while the doubt over the kiddushin is because of the item’s low value (less than a perutah).
The ruling demonstrates that tacit consent can be sufficient (at the very least as a safek) to give somebody full ownership 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 he has a desire not only to permit the item’s use, but even to allow another full ownership of the tallis.
Using Someone Else’s Esrog
Based on the word “lachem” (for you), Chazal understand that we must take our own Four Species for fulfilling the mitzvah on Sukkos (see Shulchan Aruch, Orach Chaim 649:5). Can a person use somebody else’s esrog to fulfill his own mitzvah?
The Rema rules (649:5) that aside from the first day of Sukkos it is permitted to use somebody else’s esrog, based on the principle that the owner will be content that somebody is performing a mitzvah with his property. However on the first day of the festival one must use his own esrog. The Mishnah Berurah (33) explains that although the owner is happy for a person to use his esrog, this is not sufficient to transfer ownership to the user, so he will not be able to fulfill the mitzvah of the first day with the esrog.
The ruling echoes the reasoning noted by the Magen Avraham concerning the use of somebody else’s tallis without asking permission. Although a person can assume the owner’s consent to the use of his tallis—and the esrog—the consent does not include agreement to enact a kinyan. For the tallis, the Magen Avraham nonetheless rules that one may recite a blessing on the tallis even though it is not his. For the esrog, this will not be enough on the first day of Sukkos, since on that day one needs ownership.
We are thus presented with a contradiction. On the one hand, tacit consent is not sufficient to grant ownership of an esrog. On the other, it does help to grant ownership of an item that one wishes to use as kiddushin—and, as we have seen, perhaps even of a tallis.
How can the two be resolved?
Different Types of Items
It is possible that the matter will depend on the type of item involved. In the case of kiddushin, the Rambam is referring to an item that people are generally not particular about another taking. Such items do not require specific consent depending on the relevant circumstances but are rather subject to a general consent—a general state of mind whereby a person allows others to take an item for their own use.
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. (For a similar idea, see Shita Mekubetzes, Bava Metzia 10b, citing Rash di Vidash, on the general state of mind that empowers a person’s domain to make acquisitions on his behalf).
Based on this idea, it is possible to distinguish between the case of the esrog and the halacha of the Rambam. Whereas in the 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 concerning an esrog. A person is content on one hand that others should perform a mitzvah with his property, but this does not go so far as to allow others to transfer the esrog into their ownership.
A tallis, based on this distinction, could be different from an esrog. While for an esrog there is no general consent for others to take an esrog—though for a mitzvah people are willing to allow it—a more encompassing consent applies for using a tallis (such as for unmarried Kohanim). One can therefore take actual possession of a tallis based on tacit consent, but not of an esrog.
It is important to note that many of the assumptions found in Chazal and Poskim concerning a person’s mental intentions require new analysis in the light of economic and social changes over many centuries.
In bygone times it was permitted to use another person’s tefillin but prohibited to read another person’s books, since people were reluctant to lend out books (for fear they would tear; see Mishnah Berurah 14:16). Today the contrary seems 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 the 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, in contrast to books of yore. With changing circumstances our mental intentions alter, and the halacha—in this case—is also liable to change.
It is therefore important to judge each circumstance and situation independently, and for all practical cases a competent halachic authority should be consulted.