By Rabbi Yair Hoffman for 5tjt.com
You had everything you needed for the 4th of July barbeque, but you forgot the mustard. You scour the fridge, but it is nowhere to be seen.
The solution? A quick hop to the local grocery store. You jump in, but alas – there is no parking. There is, however, parking on the other side of the street in that little mini-mall. The mall has a barber shop, a non-kosher bakery, some sort of recreation center and a big sign that says “Parking for Patrons Only.”
The rationalizations begin. I will only be one minute. Surely they won’t mind. I will buy from them next time.
How do we define trespassing? Trespassing could be one of two things from a civil law perspective. It could either be the criminal act of going into somebody else’s land or property without permission of the owner or it could just be a civil law tort that may be a valid cause of action for a lawsuit to seek either judicial relief and or damages. In England, it is not prosecutable but one may sue for damages. In pretty much every state in the United States it is also a crime.
Is it a Violation of Halacha?
Are these trespassers in violation of halacha as well? What about when we park in front of someone else’s driveway without permission? Is this also a violation of halacha? If so, what exactly is the violation? Is it a crime or just a tort?
The violation is actually stealing. The Talmud (Bava Basra 88a) records a debate between Rabbi Yehudah and the chachomim (sages) as to whether borrowing an item without permission renders a person into a gazlan – a thief, or whether he simply has the status of a borrower.
Rabbi Yehudah maintains that he does not have the halachic status of a thief, while the sages maintain that he does. The Rif and the Rambam both rule in accordance with the sages that he is considered a thief. Indeed, this is also the ruling of the Shulchan Aruch in five different places (CM 292:1; 308:7; 359:5; 363:5).
Does this apply in all cases? Here there is no value per se in setting foot on the person’s property. While this may be the case, the Chazon Ish (BK 20:5) writes that the prohibition of sho’el shelo midaas – borrowing without permission applies even when the item is not something that generally has a market value, and even if the value is less than that of a prutah.
But what about if the owner would have approved of it? Many people are thinking that if the owner was aware of “what I was doing here” he certainly would not mind. This last point is not so clear cut. It has to do with the concept of Yayush shelo Midaas (that’s right, the Gemorah that our sixth grade boys always do).
Let’s go back to that famous debate between Abaye and Ravah. If a person would have given up hope on a lost item, but didn’t know yet that he lost it to have given up hope, did he give up hope? Abayeh says that he didn’t. Ravah says that he did. This is one of only six incidences in which we rule like Abayeh against Ravah.
So, in our case, where the owner didn’t know about it yet, but (in the trespasser’s mind) would most certainly have given permission, it doesn’t matter. We rule like Abayeh. Indeed, this is the position of the Tosfos in BM 22a “Mar Zutrah” as cited in the Sefer Mamon Yisroel. Even though the Shach (CM 358:1) writes that, if it were possible to say, he disagrees with the Tosfos, the overwhelming conclusion of halachic authorities is to remain with the ruling of the Tosfos. This is the conclusion of the Ktzos HaChoshain (358:1 and 262:1) as well as the Kitzur Shulchan Aruch (182:13).
Does it Apply to Land?
Ah, but how do we know that borrowing without permission also applies to being on someone’s land? Maybe in order to borrow, you have to physically take it. Here, you are just taking up airspace on someone’s land.
The Rashbam in Bava Basra 57b discusses a case of two partners in a property. There, writes the Rashbam, we are lenient and assume that one gives the other permission to place his animals on the land without explicit permission. In such a case, he would not be considered a shoel shelo midaas since they, in general, are partners, and would let the other do what they want with their property. The Rashbam, therefore, clearly states that when not dealing with two partners of a property, trespassing would be subsumed under the concept of shoel shelo midaas.
If One Did Trespass
What happens if someone did or does trespass? If you are standing, it is best to sit down in order to prepare for what you are about to read. He is considered a gazlan – a thief. What are the ramifications? According to the Shulchan Aruch (CM 34:7) he cannot be a witness at a Jewish wedding unless he does teshuvah and makes restitution where applicable.
There is one caveat, however. If he is unaware that it is forbidden, he does not lose his status as kosher witness, according to the Vilna Gaon. Most authorities rule like the Vilna Gaon.
The conclusion from all this is that trespassing is serious business. Let’s make sure we watch where we park. And let’s make sure that we have a checklist before every barbeque.
The author can be reached at firstname.lastname@example.org.