Lesson # 255 • Unauthorized Use by the Bailee
The unpaid bailee is entrusted with an object to guard, not to use. Of the four bailees, only the lessee and the borrower may use the object, for it was leased or borrowed to be used. Neither the unpaid bailee nor the paid bailee may use the object that is entrusted to them. In a prior lesson it was stated in discussing the liabilities of the unpaid bailee: "He is liable for the non-return of the object no matter what the reason, if he uses it, since any use by an unpaid bailee is unauthorized."

The object may be resting in a place designated by the owner or it may be resting in a place selected by the bailee with the right of the bailee to move the object to another place.

This and the following lesson discuss the unauthorized use of the object by the unpaid bailee. The Torah in discussing an unpaid bailee states, "If a man delivers unto his neighbor money or things to be looked after, and it is claimed that it has been stolen from the house of the man [the bailee], if the thief be found he shall pay double. If the thief shall not be found, then the master of the house [the bailee] shall place himself unto God, if he has not put forth his hands to the goods of his neighbor” (Exodus 22:6-7). The Mishna, in discussing this law, states, "If a person intends to make use of a bailment, Beit Shammai maintains that he is immediately responsible for the object. Beit Hillel maintains that he is not responsible until he actually makes use of the object” (Mishna Baba Metzia 43b). The law as it appears in Maimonides states, "If a bailee makes unauthorized use of an object entrusted to him, either himself or via his son or a slave or his agent, he is deemed a robber and is held responsible for all force majeure damage, and the robbed object is deemed to be in his custody similar to that of all robbers. He is not held responsible for the object until he actually uses it, and not for mere intent alone. Once he has made use of it, he is held responsible. Even if his use does not depreciate the value of the object, but he merely moves the object from one place to another on his premises to make use of it, he becomes responsible for the object, because unauthorized use does not require depreciation" (Maimonides Laws of Robbery and Lost Property, 3:11).

The bailee, when he makes unauthorized use of the object, either takes up the object with the view to keeping it, or just to use it and return it. Even when he takes up the object without authorization, just to use it, the use may depreciate the object, such as using an automobile where there is wear and tear on the tires and motor. Or there is no depreciation of the object, such as standing on a ladder that has been entrusted to the bailee.

There is also another concept similar to that of the bailee making unauthorized use of the object: the concept of the person who "borrows" an object from an owner without the consent of the owner. Shulhan Aruch commences with the general prohibition and the distinctions between these two concepts.

What if the bailee, after making an unauthorized use of the object, decides to return it to its place? Is he restored to being an unpaid bailee with limited liabilities? Or, once he leaves that status is he unable to re-enter that status and, instead, remains absolutely liable the same as a robber of an object?

The Torah prohibits the unpaid bailee or the paid bailee from unauthorized use of the object entrusted to him by the owner. The mere intent, whether or not verbalized, to make unauthorized use of the object does not impose any additional liability upon the unpaid bailee. This is true even if he declared his intent to witnesses. His intent, coupled with some action on his part, may cause him to be liable in all events of damage to the object, including force majeure. This extention of his intent will place him into one of two categories, that of a bailee who makes unauthorized use of the object entrusted to him, or that of a borrower without authority of the owner.

The bailee intends to make an unauthorized use of the bailment, which use will probably result in a depreciation of the value of the object. As soon as he pulls or lifts the object, he is transformed into a robber of the object, regardless of the fact that he intends only temporary use of the object and that he intends to return the object after its use. He is a robber although he never actually made use of the object after he lifted it or pulled it. Actual depreciation is not required once he intends to use it in a manner that might depreciate it. Thus intent to use it in a manner that might depreciate it coupled with a lifting or pulling of the object makes the bailee into a robber.

The bailee intends to use the object in a manner that will not depreciate the object. He does not become equivalent of a borrower without authority (which is equivalent to being a robber) until he actually uses the object, as distinguished from merely lifting it or pulling it to himself.

The bailee is liable even if he personally did not perform the unauthorized act; he is liable even if the act was performed by his agent. There is an opinion that the bailee is liable if the act to make the bailee liable was performed by the agent only if the agent was not aware that the object was entrusted to the bailee, or the agent is not mentally competent, or the agent does not have the money to pay the owner.

Ordinarily, a principal is not responsible for violations committed by his agent; the agent is responsible for his own violations. He should not have followed illegal orders, but should rather have obeyed the laws of he Torah. This situation is an exception based on a verse in the Torah.

Restoring the object to its place
Assume that the bailee makes unauthorized use of the object and there is no depreciation, or that there is depreciation and he restores it and wants to pay for the depreciation. The object is thereafter stolen, or lost, or damaged or lost through force majeure. Is the unpaid bailee liable? Under ordinary circumstances the unpaid bailee is not responsible for such loss. In the situation being discussed here, he is liable as soon as he lifts or pulls the object to use it in a manner that would depreciate the object. Does his returning the object to the place where it was stored reinstate him in the same position he was in before he lifted or pulled the object?

The majority opinion is that once he has become a robber of the object, his replacing the object does not reinstate him to a role of an unpaid bailee and continues his unlimited liability for the object. There is also a strong dissent that once he replaces the object he is reinstated to his role as an unpaid bailee and has the limited liabilities of an unpaid bailee.

The subject matter of this lesson is more fully discussed in volume VIII chapters 291 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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