Question
I bought a set of dishes. Before I opened the package, I had second thoughts and decided that I didn't like the pattern. I went to a different store and found a set that I liked. I also saw the pattern that I bought but did not like. Without saying anything I took the set I liked and replaced it with the set I did not like. Now I am not sure that what I did was proper. Did I act properly? If not, do I owe the store any money?
Answer
Certainly, you did not act properly since one who takes something without permission is a thief. Even though you intended to replace the set immediately with a set that was equal value you still are a thief. Only if one takes an object and immediately replaces it with something that is of greater value, the opinion of the Rosh (BK 6, 12) that is cited by the SA (CM 359, 2) is that the exchange is not considered theft since we can assume that the victim is happy with the exchange, since he is getting something better. We note that even the Rosh's leniency is in dispute. In any case, since you did not give something more valuable to the store, your action is considered theft and you violated the Torah's injunction not to steal, according to all opinions.
Having determined that you stole the new set of dishes we have to determine whether you paid for your theft by replacing the stolen set of dishes with your set of dishes.
There are two sections of Gemara which deal with this issue. In BK (4B-5A) the Gemara lists twenty-four classes of damages-avos nezikin, and one of the twenty-four is theft. The Gemara derives from pesukim that one need not give money to pay for these twenty-four classes of damages, but may pay by giving goods of similar value. According to this, it might seem that when you replaced the stolen set with your set, which costs the same amount, you paid for your theft and therefore do not owe anything.
However, another section of Gemara (BK 11A) deals specifically with theft. According to the authoritative approach (see Shach (354, 7), Gro (354, 12), Machane Efraim (Gezeilo 23)) of Tosafos (beg wo. Ein), the Rosh (BK 1, 11), the Rashbo and many others the Gemara rules that one must return the same object that he stole and may not pay for his theft by giving another object to replace the object that he stole. The Rosh writes: "One may not pay with an object that the victim will need to work to sell to buy a replacement for the stolen object." The Rosh adds that the thief may pay with cash since the victim will be able to buy a replacement without effort. Tosafos cites a section of Yerushalmi that derives this rule from pesukim in Chumash.
Thus, the Torah excluded theft from the rule that one may pay for damages with goods. Based on this, you did not fulfill the Torah's command to return the object that you stole by giving the store your set of dishes. Thus, you violated a negative injunction of the Torah and also did not fulfill the Torah's positive command to return the stolen object.
We have determined that you did two actions that are not connected to each other: one action is that you stole one set of dishes from the second store for which you owe them money since presumably you used the dishes which you stole, and the second action is that you gave the store your set of dishes for which you may be entitled to money. In order to determine whether you still owe money we have to decide how much you owe for your theft and how much you deserve for giving your set of dishes.
The issue involved in determining how much you owe for your theft is that the store buys wholesale and sells retail and the question is whether you owe the store the amount it paid for the set you stole (wholesale) or the amount it sells the set for (retail).
There are several proofs from the Gemara that you owe the storekeeper the amount that he charges for the dishes and not the amount he paid for the dishes. One proof is a Gemara (BM 99B) that discusses a person who stole fifty dates that were caked together. The price of fifty dates when sold individually is one pruto per date, but fifty dates caked together sold for forty-nine prutos. The Gemara rules that the thief has to pay forty-nine prutos and we don't accept the victim's claim that he would have sold the dates individually and earned fifty prutos. We see that the thief must pay the amount that the store charges for the merchandise and not the amount the store owner pays, since the Gemara does not even consider the option of paying what the store paid for the dates but only the two prices it charges, bulk and individual.
Another proof is from a section of Gemara (ibid.) that discusses how much porters must pay for breaking a barrel of wine that sold for one price on market days and a different price on non-market days. Here we see again that the price one who damaged or stole from a storekeeper must pay is the amount the store charges, and not the amount that the store owner paid to buy the merchandise.
Therefore we have established that you owe the store owner the price that he charges for the dishes that you stole.
Now we have to determine how to evaluate the set of dishes that you left at the store. As we mentioned, your set was not payment for the set you stole. Moreover, had you approached the store owner and told him you wish to pay by giving him your set of dishes he could have refused to accept your dishes since you owed him money. The Machane Efraim (Gezeilo 23) maintains that even if you had no money and only goods you must sell your goods and return money. While the Chazon Ish (BK 7, 5) disagrees with this chiddush and maintains that if you have no money you may pay with goods, nevertheless, this serves to underscore your requirement to pay money and not goods.
We have to determine how much the store must credit you for the dishes you left there. There are two possible things that the store could have done with your dishes. The store may have sold the dishes. In this case the store has to credit you with the amount of money that the store pays its supplier for dishes, which is the wholesale price since this is the amount you saved the store owner. Since he sold your dishes, he did not have to pay his supplier the wholesale price as he generally does. The fact that he sold them for the retail price does not give you a credit for that amount since he worked and had expenses in order to earn the profit. The only amount he saved was what he otherwise would have paid his supplier.
The other possibility is that he was not able to sell your dishes and he returned them to his supplier in which case he would have gotten a credit for the wholesale price of the dishes. Thus, in either case the amount he must credit you is the wholesale price of the dishes.
Since you owed the retail price and only have a credit for the wholesale price, you owe the store the difference between the retail and the wholesale price for the dishes.
In determining the amount you owe for the stolen dishes, we do not value the dishes at the price the store charges for the dishes since it is possible that this store charges an unusually high price. SA rules (103, 2 and see Sema note 5) concerning a debtor who repays his lender with goods, that in order to determine the value of the goods we ask three evaluators to value the goods and we value the goods at the price that is agreed to by at least two of the three evaluators. Therefore, if you think the particular store from which you stole is more expensive than other stores, we will evaluate what you stole by randomly selecting three stores and value the dishes at the price that the dishes cost at the second most expensive store.
In conclusion: You were not allowed to exchange the dishes and you simply stole the dishes that you took. Furthermore, even though the dishes you gave the store sell for the same price as the dishes that you took, you owe the store the difference between the wholesale and the retail price.
