I’d like to share with you a case that occurred a few weeks ago, during Chanukah,” Rabbi Dayan said to his kollel students.

Yehuda and Dan shared a dwelling unit. Shortly before Chanukah, Dan began polishing his silver menorah. “That’s a beautiful menorah,” Yehuda said. “It will look really nice in the window.”

“Actually, when I learned in Israel I got into the practice of lighting outside,” Dan replied. “I have a special box to protect the menorah.”

“But what about thieves?” asked Yehuda.

“Our neighborhood is relatively safe,” replied Dan, “so for the hour or so I leave the menorah outside it should be fine.”

One evening, Yehuda returned from work just as Dan’s menorah was going out. “Can I use your menorah tonight?” Yehuda asked.

“Sure,” said Dan. “I’ll be leaving soon, though, so please bring it back inside when you’re finished.”

Yehuda replaced the oil and wicks and lit the menorah. He sang “Maoz Tzur” with Dan. Fifteen minutes later, as Dan left, he saw that the menorah was missing!

“Guess what?” Dan shouted. “The menorah was just stolen!”

“My tough luck!” exclaimed Yehuda. “I’ll have to pay for it.”

“I’m not sure,” replied Dan. “I lent the menorah to you with the intention that it would be lit outside, and it was stolen while you were using it.”

“What do you think?” Rabbi Dayan asked his students. “Is Yehuda liable for the menorah?”

“This seems a simple case of theft,” noted one student. “A borrower is liable for theft, and even for oness (uncontrollable circumstances)!” (See C.M. 340:1.)

“On the other hand,” objected another, “a borrower is exempt for meisah machmas melachah, where the item was ruined through normal usage of the item. Does the exemption of meisah machmas melachah apply also to theft during normal usage?”

“Perach Mateh Aharon, by Rabbi Aharon Perachia, addresses a similar case when jewelry was lost or stolen while being worn,” answered Rabbi Dayan. “He links this question to a dispute cited in the Tur (C.M. 340), regarding a borrowed animal that was attacked while the borrower was traveling.

“The Ramah maintains that this is considered meisah machmas melachah, since the attack occurred on account of the travel,” explained Rabbi Dayan. “The Rosh, however, disagrees, since the loss of the animal was not due to actual work usage, like breaking a leg would be. The animal could have been attacked even when not working, so this is an extraneous oness, for which the borrower is liable.”

“What does the Shulchan Aruch rule?” asked the students.

“The Beis Yosef defends the Ramah, stating that wild animals and bandits are uncommon in the city, whereas the roads are dangerous, so that the attack is due to the travel,” answered Rabbi Dayan. “Accordingly, he rules in the Shulchan Aruch that the borrower is exempt. However, the Rema cites the opinion of the Rosh that the borrower is liable; the Shach (340:5) concurs with this opinion.”

“Perhaps there’s a difference between that case, where the animal was attacked en route, and our case of theft?” the students asked.

“Indeed, Perach Mateh Aharon suggests that even the Ramah might exempt [the borrower] only if an oness occurred through the usage, but not theft, but he concedes that there is no source for this distinction,” replied Rabbi Dayan. “However, the Nesivos (340:5) rules that if the animal was stolen during the night on the journey even the Shulchan Aruch would hold the borrower liable, since at night theft could occur just as easily in the city. Nonetheless, this might not apply in our case, since the menorah was lent with the intention of being used outside where there is increased risk of theft.

“Thus,” concluded Rabbi Dayan, “Yehuda cannot be held liable for the menorah, on account of the lenient opinion of the Ramah and Shulchan Aruch. However, it would be proper to partially compensate Dan, in deference to the opinion of the Rosh, Rema, Shach and Nesivos.”