Question
Recently one of my friends from Yeshiva got married. He was quite overweight and so we weren’t able to pick him up on a chair. One of the friends went to a nearby shul and took one of the succa boards without asking for permission, thinking that since the board was much bigger, more friends could join in picking up the chosson. However, in the end the weight was too much for the board and it broke. We are at a loss figuring out who, if anyone, has to pay for the broken board. Some say that no one has to pay for two reasons. One reason is because picking up the chosson was part of the wedding festivities, and one is exempt from paying for damages that occur during the course of wedding festivities. Others say no one should have to pay because it broke while being used and it should be considered meiso machmas melocho. Others say that the one who brought the board should pay because he took the board from the shul and didn’t return it. Others say that all those who picked up the chosson should pay because in the end that is when the board broke.
Answer
Each of the opinions has some truth just some apply to this case and some don’t. We will therefore, examine each opinion and discover if it is relevant.
It is true that there is an exemption from damages that result from wedding festivities. However, once we understand the reason for this exemption we will understand why it does not apply to your situation.
The source for this exemption is Tosafos (Succa 45A) who understands that the Mishna writes that it was customary for adults to grab children’s lulav and esrog on Hoshana Rabba-when they no longer needed them to fulfill the mitzvah. Tosafos says the reason this act, which seems to be stealing, was allowed is because it was the custom. Therefore, it was as if the children, who brought their lulav and esrog to shul thereby granted permission to the adults to take their lulav and esrog.
Similarly, when the Ramo (Orach Chaim 695, 2) writes that one is not liable for damages that he perpetrated as part of the Purim festivities, the Pri Megadim (695, 7) comments that the reason is because that was the custom. In a similar vein, the Aruch Hashulchan writes (695, 10) that since nowadays it is not customary for people to become so happy on Purim, to the extent that they would damage others, therefore, one who damages in the course of Purim festivities is liable.
Thus, we see that the exemption from payment is limited to the possessions of those who are involved in the simchah-like children who come to shul, or the general public that is involved in the Purim celebration. The shul however, was not a participant in this private chasuna. Additionally, only customary activities are included. What your group did is not customary.
Thus, since the shul did not make its boards available for this chasuna there is no basis for freeing the one who is liable from his liability.
The second reason you mention for exempting your friends from liability is that the board broke as a result of usage known as meiso machmas melocho and the rule is that even a borrower is not liable for meiso machmas melocho. However, again we will see that this does not apply.
The Rishonim (Bovo Metseyo 96B) offer two reasons why the Torah freed a borrower from liability in case of meiso machmas melocho. The classic case of meiso machmas melocho is where one lent someone his cow to plow and the cow died while plowing normally. The Ramban writes that the reason why the borrower is not liable is because the lender is considered to be delinquent since he should have never lent his cow for plowing if it was not physically suited for the task. The Rashbo offers a reason that whenever one lends an object he is aware that the object will suffer somewhat from wear and tear and yet he agrees to lend it out. We say that just like he agreed that his object may suffer some wear and tear so too he agreed that it may be used even it will suffer a lot of wear and tear.
We notice that both of these reasons are contingent upon the owner’s granting permission to the borrower to use the object. Therefore, the Presho and Ketsos (308, 3) write that even where the one who used someone else’s object had general permission to use the object like an object that is used to perform a mitzvah (where we have a general understanding that people are happy to allow their objects to be used to perform mitzvos), nevertheless he will be liable if the object is damaged from normal usage since the owner did not grant specific permission to use the object. Certainly, in your case where the shul did not grant any permission to use its board you were never freed from liability.
Thus, we have established that someone is liable and we just have to decide who is liable.
One who “borrows” an object without permission is called by the Gemara ) BM 41A) a shoeil shelo mida’as and is considered a thief even though he intends to return the object in the exact same condition he found it. Therefore, the one who took the board is considered a thief as soon as he took the board (See Nemukei Yosef BM 23A) even before the friends used it. One who steals an object is totally responsible for it even if what happens afterwards is an oness because one who steals becomes the owner in a sense and he only relinquishes ownership when he returns the object. If he can’t return the object for whatever reason he remains a thief and must pay for the object.
Finally, the friends who participated in picking up the chosson are not liable because they didn’t tell the one who took the board to do so and even if they would have asked him they wouldn’t be liable because ein schliach lidvar aveiro-one who does something which is forbidden does not have the status of an agent. Therefore, the only one who is liable for taking the board without permission is the friend who actually took the board.
In conclusion-The one who took the board without permission is the only one who is liable. He must either replace the board or pay for it.
