Yisrael Baum was browsing the Buy and Sell column in the newspaper for a gift for his mother.

“Brand new Kenwood dough mixer for sale,” one ad read. “$79!”

“Oh, wow!” said Yisrael. “My mother has been wishing for something like this to make challah!”

Yisrael contacted the seller. “Is the mixer completely unused?” he asked.

“Yes,” came the reply. “It’s untouched, still in the original packaging.”

Yisrael decided to buy the mixer and agreed to pay to have it shipped to him from another city upon the seller’s receipt of payment.

A week later, the mixer was delivered by mail in a large cardboard box. Yisrael opened the box and saw the mixer still sealed, with one small slit in the tape. He wrapped the mixer in gift wrap, attached a card to it, and placed it prominently on the kitchen table.

When Yisrael’s mother returned home, she was visibly pleased by the gift sitting on the table. She read the card with appreciation, and opened the wrapping paper.

“Oh!” Mrs. Baum exclaimed. “It’s just what I wanted!”

As she took out the mixer, Mr. Baum was surprised to find another card sitting in the box. She opened the card, which read: “Ben and Basya: Mazel tov on your marriage!”

Mrs. Baum was puzzled. “Where did you get the mixer?” she asked Yisrael.

“I bought it from an ad in the newspaper,” he stammered. “It was advertised as brand new, still in its original packaging.”

“Hmm,” said Mrs. Baum. “I know a couple, Ben and Basya, whose apartment was robbed after their wedding. A lot of gifts were stolen.”

“You mean…” said Yisrael. “I can’t believe it!”

Yisrael tried calling the seller, but received no response.

“I’ll call the couple and ask if they got a mixer,” said Mrs. Baum.

“Yes,” was Basya’s reply. “We received a Kenwood mixer, which was stolen. That must be our mixer. We’ve been in contact with the police for two months already. They said that it’s unlikely to catch the thief, so we gave up hope of reclaiming it.”

“What do we do now?” Mrs. Baum asked her husband. “Can we keep the mixer or do we have to return it?”

“I’ll ask Rabbi Tzedek,” he said.

Rabbi Tzedek answered, “According to the Gemara, the mixer belongs to you, but the required practice nowadays is to return it to the theft victim.”

Rabbi Tzedek then explained, “A stolen item remains property of the victim and must be returned, so long as it is intact, even if the owner abandoned hope of reclaiming it (yei’ush). However, if the owner abandoned hope and afterwards the thief sold the item, the purchaser acquires it according to the Gemara. The transfer of the item to the possession of the purchaser is a form of shinui (change) to the item (C.M. 353:2-3).”

“Does it matter whether the sale took place before or after the yei’ush?” asked Yisrael.

“The Shulchan Aruch, based on the Rambam, does not differentiate,” replied Rabbi Tzedek. “The Rema, however, following almost all other Rishonim, requires yei’ush first; this is the generally accepted ruling. The rationale is that unless the owner already abandoned hope of reclaiming his object, it entered the purchaser’s possession illegally. Therefore, the purchaser also carries the obligation to return the object, unless the yei’ush preceded the sale (Shach 353:4).”

“Why, then, is it necessary to return the item nowadays?” asked Yisrael.

“Dina d’malchusa (the law of the land) requires returning any stolen object,” replied Rabbi Tzedek. “The Rema writes that nowadays the practice is to return any theft even after yei’ush and shinui reshus, on the basis of dina d’malchusa (356:7).”

“Do we always follow the law of the land against the halachic ruling?” asked Yisrael.

“Not always,” said Rabbi Tzedek. “However, here the Jewish practice also evolved to return the stolen item, so it became like a rabbinic institution (Shach 356:10). Furthermore, this law of the land does not completely contradict Jewish law, since Halacha also considers it meritorious to return a lost or stolen item even after yei’ush. Therefore, the law of the land is followed here (see Ketzos 259:3; Chelkas Yaakov, C.M. no. 32).”

We planned on going to the mountains for the summer. In compliance with the owner’s demand, I paid half of the rental fee as a deposit. A few days before we were scheduled to leave, one of my children was hospitalized, which forced us to cancel our plans.

Q: Do we remain obligated to pay the full bungalow rental if the owner cannot find a replacement for us? Additionally, are we entitled to a refund of the deposit?

A: As a general rule, if an employer terminates an employment agreement due to circumstances that could not have been anticipated, the employee is only paid for the work that he did. He does not receive remuneration for the work that he ended up not doing, despite the resulting loss of income.

Poskim (C.M. 334:1) debate whether this principle applies to a parallel situation between a landlord and tenant. In this case, the tenant (who pays) is comparable to the employer and the landlord (who is paid), to the employee. According to one opinion, if the tenant died in the middle of the lease, his heirs are not obligated to make the remaining payments due on the lease. Since oness - circumstances beyond their control - occurred, the loss is suffered by the landlord.

Others disagree and contend that renting a house is considered a purchase of the usage rights for the period of the lease, sechirus l’yomei memkar. If one purchased a house and it collapsed shortly afterward, he is still obligated to pay for the house. Similarly, since for the period of the lease, usage of the house is “sold” to the tenant, he or his heirs must pay for that “purchase” in full, even if it is no longer needed or available.

Shach (334:2) rules that the tenant is not obligated to pay for the remaining time, though the landlord is not obligated to return rent the tenant paid in advance. Paying in advance demonstrates consent that the money will not be refunded even if circumstances render the object unavailable. But this rationale does not apply if the tenant paid in advance due to the landlord’s demands; the tenant might be able to demand a refund of the unused money. (See, however, Erech Shai.)

In the final analysis, though, since your landlord has possession of the money (muchzak) he can claim that there aren’t sufficient halachic grounds to refute the second opinion, which maintains that the tenant is obligated to pay the remainder of the lease even if he didn’t pay in advance. Therefore, you do not have to pay for the remaining rental, but he is not required to refund your money.

Q: My neighbor went away and asked me to watch his expensive lawn mower, which I put in the garage. I took the liberty of using it without permission for my own lawn. Am I liable if it was subsequently stolen?

A: One of the guardian’s oaths is that he did not misappropriate the entrusted item. If he took it with intention to steal it (shelichus yad), he becomes fully liable - even for loss through uncontrollable circumstances (oness) - until he informs the owner that he took the item and returned it (C.M. 353:3).

The same is true if the guardian took the item with the intention to use it in a manner that causes wear on it or detracts from its value (292:1). If the guardian took the item to use in a manner that does not detract from its value, he is called sho’el shelo midaas (borrower without permission), which is also considered a form of theft. He becomes liable from the time he actually uses it.

The Rema exempts him after he returns the item to its place, but many later authorities dispute this ruling or limit it to situations where the owner would have allowed usage (292:1; Sm”a 292:4; Shach 292:1).

Iy”H, next week we will discuss circumstances in which usage might be permitted.