BS”D
Question
Two years ago someone brought me a pair of tefillin to repair. He mentioned that this was a spare pair of tefillin and he was thinking of setting the tefillin aside to lend to others-a gemach. Since then, he never picked up the tefillin, never paid for my work and they are just sitting by me. I have no idea who he is or where he lives. Tefillin that are left unused require maintenance and I already once needed to work on them. What can I do with them? What I would like to do is lend them to others, like he mentioned that he was contemplating doing. Is that permitted?
Answer
We should first note that if you wish you certainly may use the tefillin for yourself on occasion since Chazal made a general observation that people are happy if someone uses their mitzvah object even if he never asked for permission. For example, the Shulchan Aruch rules that anyone may use another person’s tallis or tefillin if the owner left them in shul even if he did not receive express permission from the owner to do so. However, there are poskim (Bach, and Magen Avrohom siman 14 in Orach Chaim) who maintain that one may only do so on occasion but not every day, and this is the ruling of the Mishnah Berurah (14, 13). Also one may only use the mitzvah object in the place he found it. He may not take it to another place since we are not certain that the owner does not mind. Therefore, based on these general principles, you cannot start using these tefillin for yourself every day and make your own tefillin into a gemach.
Moreover, since your status is at worst that of a watchman (shomer), the Shach (72, 8) rules that a watchman may use on a temporary basis any mitzvah object that we do not fear will be damaged. Some Rishonim (Mordechai Bava Metsiyo 263 and Nemukai Yosef B.B. 87B) even maintain that you can lend it to others even if they take it to other locations. It would seem that the Mishnah Berurah (658, 21) and Aruch Hashulchan (658, 14) side with this opinion. Therefore, you may even lend the tefillin to others on occasion.
All the above is true in general. However, we should take into account the fact that the tefillin were left by you for two years. We find that these rules are dependent on circumstances and are not categorical.
For example, the general rule, in earlier days when seforim were scarce and expensive, was that one was not allowed to use another person’s sefer without permission since most people would mind, out of fear that the sefer would be damaged. Moreover, the Gemoro (Bava Metsiyo ) rules that one who was asked to watch another person’s sefer is not allowed to read from the sefer. However, the Rama (CM 292, 20) rules that if the person who was entrusted to watch the sefer was a talmid chochom then he is allowed to use the sefer since we assume that the owner expected that a talmid chochom would do so. Therefore, it would seem that you could even use or let others use the tefillin regularly.
In your situation where the customer owes you money for the repair and he hasn’t come for two years, the Mishpat Ho’aveido (267, Eifas Tsedek on Birur Halacha 20) remains in doubt that perhaps we can assume that the owner meant to leave it with you permanently since we can assume that he probably did not forget about his tefillin and decided that he’d rather save the cost of repairing the tefillin. If this is the case you can do whatever you want with the tefillin.
Furthermore, we can take into account the fact that the owner mentioned that he planned to use the tefillin to lend to others. We find that, in general, a person who is allowed to use another person’s object may not give others permission to use it because one cannot assume that the owner doesn’t mind. However, if the owner showed that he doesn’t mind, e.g. he in the past allowed this other person to use the object, then the Gemara (Bava Metsiyo 5A) rules that watchman may entrust the object to other people. Therefore, by saying that he planned to use the tefillin for a gemach the owner said that he doesn’t mind if others use the tefillin. The fact that you are running the gemach on his behalf would seem to be serving his interests and thus should be permitted.
While all of the above is probably correct, it is based on umdeno-our evaluation of the customer’s wishes. This is only a probable answer. However, there is a somewhat different approach that is certainly permitted.
This approach is based upon the Gemoro (BM 29B) that rules that one who finds tefillin may evaluate their value and acquire the tefillin for himself at this value, if he wishes. The Gemoro says that the reason the finder may do this is because there are many tefillin available for purchase. Therefore, the owner does not mind if the finder wishes to buy his lost object. While many poskim (e.g. Rav Eliashev as cited in Mishpat Hoaveido on page 191) rule that today this rule does not always apply to tefillin because people are often very particular to acquire only tefillin written by a particular sofer, since in your situation these were standard tefillin you may certainly do what the Gemoro permits.
If you follow this approach what you are doing is buying the tefillin for yourself. We should note that since there is no market for used tefillin you would have to evaluate carefully how much a person would need to be paid in order to sell these tefillin. The reason is that you have to pay an amount for which the owner of these tefillin would be willing to part with these tefillin.
There is a dispute if one needs beis din to do the evaluation. However, for two reasons you can do the evaluation without beis din. First, both Rav Moshe Feinstein (Iggros Moshe (CM2, 45)) and the Chazon Ish (many anecdotes that are recorded in Orchos Ish) maintained that one who knows prices can do it on his own and if he needs help can ask experts. Second, since we mentioned that it is necessary nowadays to pay an amount that reflects the amount that a person would be willing to sell the tefillin for, it would suffice to record the price of new tefillin of this type and the condition of the tefillin in question.
Another issue is what you have to do about paying. While there are Rishonim (Rashi, Ramban, Ritvo in their commentary to Bava Metsiyo 29B) who maintain that you have to set money aside equal to the value of the tefillin, there are others (e.g. Rashbo ibid) who say you do not need to actually set money aside. The recent Acharonim (Chasam Sofer, Iggros Moshe, Pe’as Sodecho, Ohr Dovid) were of the opinion that you do not need to set money aside.
There is an interesting issue that the Pe’as Sodecho considers. He lived in a time of hyperinflation in Israel and suggested that since we have to take into account that it may be a long time before the true owner asks for his money, one should write the value in terms of something that is stable (e.g. gold in some periods).
We should note that even though, once you don’t have to set money aside, it would seem that the two approaches are very similar in practical terms, they really are in many ways quite different.
In the first approach, ownership is retained by the original owner of the tefillin. Your liability is limited to damages that result from carelessness. Furthermore, the owner will receive credit for the mitzvah of lending out the tefillin.
In the second approach, by contrast, you bought the tefillin and owe the owner the evaluated amount minus the cost for your work. But all the credit for lending out the tefillin will be yours.
In conclusion: You certainly can buy the tefillin without having to pay anything until the owner shows up, if that ever happens. Alternately, even if you don’t purchase the tefillin you probably may lend the tefillin to others.
