Question
One day I parked my bike near the school I attend. I chained the bike to the fence next to our school and went to class. When I returned, I noticed that the seat on my bike was different from the seat that was on my bike in the morning. I asked around and some other students told me that they saw someone unscrew my seat, which looked very nice, and exchange it for his plain-looking seat. They told him that he’s stealing but he didn’t care and drove off. I told them that I am happy that he exchanged seats because even though my seat looked nice it was cracked on the bottom and his seat is in good condition so in truth, he did me a favor by exchanging seats. My question is whether there is any problem with my using the seat since, had he known that he made himself a bad deal, perhaps he never would have made the exchange so perhaps the seat really belongs to him and I am not allowed to use his seat without permission.
Answer
You said you are happy with the exchange and your only question is whether you are allowed to use the seat since perhaps the seat does not belong to you.
In order to answer your question, we must first analyze from a legal perspective what transpired in your situation. The person who took your seat did not just steal your seat. He paid for your seat by giving you another seat in exchange. When one takes another person’s object without permission but pays for it there are two possibilities: If the victim is happy with the payment the sale is valid (BK 62A, BB 47B). However, if he is not happy and even under duress does not consent to what transpired, the sale is invalid (BK 62A). The one who took the object in this case is called a chamsan and he does not acquire the object, even though he gave the owner the complete value of his object. Furthermore, besides violating the injunction against stealing, the one who took the object violated one of the Ten Commandments: lo sachmod – it is prohibited to covet another person’s possession.
In your case it appears that the person who took your seat did not intend to pay in full for your seat. One who does not pay in full is a thief (CM 205, 4) even if he coerced his victim to give him the object since he forced his victim to give him the excess value of the object. However, if he pays in full and the victim is satisfied with his remuneration, he is not a thief and not even a chamsan.
What happened in your case is that the one who took your seat intended to steal but unwittingly, since he paid in full and you are satisfied with the exchange, he did not steal your seat but bought your seat by paying you with his seat.
The problem with the sale is that your seat was damaged in a non-obvious place. Therefore, as a sale it is a mekach to’us, a sale based on a mistake. A sale of a defective object can be reversed by the buyer since every sale is only made on condition that the object is not defective.
While you did nothing to mislead the one who took your seat, nevertheless as a sale the one who received the defective good has the right to invalidate the exchange on the grounds that it is a mekach to’us since mekach to’us has nothing to do with blame. We see in the Gemara (BK 42B) that even if the seller justifiably had no inkling that the item he sold had a defect, nevertheless the customer may reverse the sale on the grounds that it is a mekach to’us. (This is very relevant today since stores sell closed goods which sometimes are defective. If the goods are defective the sale is a mekach to’us and the store must refund the customer’s money even though the store is not at fault.)
Returning to your question whether you may use the seat, we must consider the two possible scenarios. In case the “thief” does not return your seat and invalidate the exchange as a mekach to’us then the exchange is legally valid and you are already the owner of the seat he gave you. Therefore, in that scenario you certainly may use the seat since it is already yours.
The scenario that can be problematic is if the “thief” returns and claims that the exchange was done in error since in that case retroactively the ownership of the seat that he left you will revert to him and as a result you will retroactively have used his seat without his permission.
We note that the right of the buyer to undo a sale on the grounds that it is a mekach to’us is only until shortly after the “thief” discovers the defect in your seat. If a customer notices a defect in the item that he purchased and yet continues using the object the SA (CM 232, 3) rules that he forfeits the right to claim afterwards that the sale is a mekach to’us. Therefore, your question only applies to the period prior to his discovery of the defect.
This situation is analogous to a situation that is discussed by the poskim concerning a lost object.
The SA (CM 136) rules that if A’s garment was exchanged for another by accident, A made not take the object that replaced his object and use it, since he cannot assume that the object that he finds belongs to the one who took his object, and even if it was taken by that person, perhaps that person does not allow him to use his object. Interestingly, the Aruch Hashulchan writes (136, 2) that it was customary in his area (early twentieth century Russia) that if a person’s boots were exchanged in a public place, each one would use the other’s boots until they met again and exchanged the boots. He says the custom is proper because since that was the custom each one allowed the other to use his boots.
Rav Eliashev is cited (Mishpat Ho’aveido 260, ST 169) as having ruled that we can apply this ruling to a situation where A’s object was exchanged and there are indications that the object that A found belongs to the one who took his object and that person is using A’s object. Unless there is some special reason why the owner of the object will mind him using his object, we can assume that the owner will not mind because otherwise that owner, who took A’s object, will need to pay rent for using A’s object.
In your case you can definitely assume that the one who took your seat is using your seat in the interim and, since he replaced it with his seat, he expects you to use his seat. Therefore, even if the one who took your seat plans to eventually reverse his action you may use the seat.
A second reason you may use the seat is that you can assume that he will not return to claim that the exchange is a mekach to’us because doing so will expose him as a thief. We find a similar scenario in the Torah where Yehuda told his messenger not to reclaim the objects he gave to Tamar as a security deposit since it would lead to his embarrassment. Also, we find in the Gemara (BM 66B as explained by Tosafos) that a customer may keep fruit that he has as a result of an invalid sale, because he may assume that the seller will not ask for their return because he will want to affirm the integrity of his actions in selling the fruit.
A similar case with a much bigger chidush was discussed by the Chasam Sofer (CM 122). In his situation a girl who had been employed as household help deposited her valuable earrings with her mistress and suddenly quit her position and left, leaving behind her earrings. The Chasam Sofer ruled that the mistress may assume that the girl wanted to give her the earrings as compensation for having quit her job. Even though she was allowed to quit her job, since it was not the most proper way to act, we can assume that she intended to give the earrings as compensation for her behavior!
From all of these cases we see not only that we can assume that the “thief” will not come to claim the return of his seat, but also that you really acquired the seat even if he really prefers to have the seat he gave you and the only reason he does not ask for its return is to avoid embarrassment. Even though a basic condition for a valid transfer of ownership is the desire of both parties to transact, a desire based on ulterior reasons is considered a valid desire. Thus, even if the “thief” really would prefer to reverse the exchange that he made, the exchange remains valid since in order to reverse the sale he will suffer embarrassment and he prefers to avoid this embarrassment by leaving you the seat.
Another case in the Gemara (BB 48A) where we see this principle is where a person was being beaten-up to sell something for its full price. If the seller says that he agrees to sell, even though he only does so in order to avoid a continued beating, the sale is valid, since under the circumstances he desires to sell.
A further reason why you may use the seat is that generally the “thief” is probably not entitled to reverse the exchange. The reason is that there are people for whom looks are more important and they prefer a damaged seat that looks very nice to a plain seat that is unblemished. We note that the entire reason (CM 232, 7) the customer can reverse a sale if the object he received has a defect is because normally people do not want to receive a defective object. If there is reason to doubt this assumption, the victim cannot demand the cancellation of the sale.
In your case, it is apparent that the one who took your seat valued looks to the extent that he would steal for it. Therefore, perhaps at the time he took your seat he would have done so even if the seat he received in exchange was defective. Since it is not certain that he would not have taken your seat even if he knew it was defective, he cannot cancel the sale. A similar situation is discussed by the Gemara (Kesubos 75B) where the assumption that people do not want to buy damaged goods ran counter to another assumption.
In conclusion: There is no problem for you to use the seat. Firstly, the exchange generally cannot be reversed, secondly even if it could be reversed you can assume that the thief will not request a reversal and thirdly even if he would ask for a reversal you are entitled to use the seat in the interim.
