Yossi was rushing home from his dorm for Shabbos. He packed up quickly, stuffed his wallet in his pocket, and headed out. Before leaving the building, Yossi reached into his pocket to check that he had taken his cell phone. He didn’t find it, so he ran upstairs and grabbed the phone, which was sitting on the table.
On the way to the train, Yossi was confronted by thugs armed with knives.
“Give us your wallet,” they demanded. “And your phone.”
Of course, Yossi complied, and they ran off.
Shortly after arriving home, Yossi received a call on the house phone from his roommate, Ezra.
“You accidentally left your phone in the room,” Ezra said. “And I can’t find mine. Did you take it by mistake?”
“You’re kidding!” cried Yossi. “I really took your phone?”
“It seems so,” said Ezra. “Haven’t you tried using the phone since you left?”
“You’ll never believe what happened,” Yossi apologized. “On the way to the train, I got mugged! They took my cell phone. I guess that means yours is gone.”
“Wow! Sorry to hear,” said Ezra. “Are you okay?”
“Baruch Hashem, I’m okay,” replied Yossi. “Just a bit shaken. They also took my wallet; I had to cancel my credit cards. I’m really sorry about your phone.”
“What should I do with your phone?” asked Ezra.
“Use it meanwhile,” said Yossi. “I guess I’ll have to buy you a new one after Yom Tov.”
“It’s not your fault,” said Ezra. “You were mugged.”
“Still, I took your phone without permission, and it’s gone,” said Yossi. “It’s my responsibility, isn’t it?”
“I’m not convinced you’re liable,” said Ezra. “I suggest we raise this with Rabbi Dayan when you return.”
After Shabbos, Yossi and Ezra met with Rabbi Dayan. “Am I liable for Ezra’s cell phone?” Yossi asked.
“There are a number of factors to consider here,” replied Rabbi Dayan. “A thief is liable for the stolen item, even if it is subsequently lost through uncontrollable circumstances. Thus, had you knowingly stolen Ezra’s cell phone, you would be liable even if you lost it later through armed robbery (see C.M. 303:3; Nesivos 182:2; Pischei Choshen, Geneivah 4:5[18]).”
“What difference does it make, then, whether I knowingly stole the phone or took it by mistake?” asked Yossi. “Either way, I took it without permission. Doesn’t that make me liable?”
“There is an extensive discussion in the Acharonim about whether someone who mistakenly stole is considered a thief,” said Rabbi Dayan. “If the item is intact, he obviously has to return it. The question is whether he has the liability of a thief when the item cannot be returned, such as in your case.”
“I understand,” said Yossi. “What is the halacha?”
“Ketzos Hachoshen (25:1) addresses this issue in the case of a judge who mistakenly handed money from the innocent party to the other litigant,” replied Rabbi Dayan. “He argues that the judge does not carry the liability of a thief if he did not intend to steal.”
“But isn’t a person who damages liable whether he did so accidentally or not?” asked Ezra.
“Yes; the Gemara (B.K. 26b) derives from the verse ‘petza tachas petza’ that even one who injured or damaged unintentionally is liable,” answered Rabbi Dayan. “However, there is no parallel source to impose the absolute liability of a thief on one who stole unintentionally.”
“You mentioned that there’s discussion about this,” noted Ezra. “Do other Acharonim argue?”
“Yes, because when the judge mistakenly took the item, he willingly handed it over to the other party,” replied Rabbi Dayan. “They also argue about when a person intends to acquire an item for himself, mistakenly thinking that he had permission to do so. However, if the person had no intention of acquiring the item, because he thought it was his, and it was subsequently lost through uncontrollable circumstances, many exempt him from liability (see Nesivos 25:1; Machaneh Efraim, Gezeilah #7).
“Thus,” concluded Rabbi Dayan, “Yossi is not liable for the cell phone.”