by R. Daniel Mann
Question: I am serving in the army, and I witness a lot of things being thrown out, whether it is food or other items that they no longer have use for. If I am confident that something is going to be thrown out, but it has not yet been done, can I take the item for myself in a manner that is against the rules? My understanding is that they object to people taking such food out of fear that someone will get sick from the food and sue. Regarding objects, I understand that if people get used to taking things that are about to be discarded, some will take certain things that are not really about to be discarded. However, if I am convinced that it is a time that they do not really want the items for themselves, is it forbidden to take them? Please provide sources to prove your point.
Answer: First, let’s set ground rules for our answer. The army has the right to make rules of discipline, which we join them in expecting soldiers to obey just because the army is a place that requires discipline. We are not dealing with the real possibility the actions described are prohibited on those grounds (for that, you can inquire in the army). We are also answering theoretically based on the assumptions raised in the question and do not intend to rule about specific cases.
All the objects in question were, at some point, fully owned by the army for the purpose of using them on their terms, and we are discussing objects that will end up in the garbage in a way that they will become hefker (ownerless). There are two justifications for using such objects before they are disposed of:
- The owners give permission. It is a good question if permission has to be explicit or can even be assumed (see Machaneh Ephrayim, Gezeila 2). Presumably, if an owner says he does not give permission, then he does not give permission, even if one believes he is not losing anything (Rama, Choshen Mishpat 363:6). Granted, there is a concept of kofin al midat S’dom (we may force a person to allow someone to technically infringe on his ownership rights when failure to allow is immoral (Bava Batra 12b)). According to many, in a case the person can be forced, one who wants to use the object can take it on his own accord (see Rosh, Bava Kama 10:16). However, when there is any semi-plausible reason that the owner might lose out by his object being taken, it is forbidden to do so, even if it is only due to concern of what might possibly happen and even regarding indirect damage (see K’tzot Hachoshen 154:1). The reasons you cited suffice.
It is plausible that an entity such as the army might not give permission to others to take their food not because they really don’t give permission, but that it is a disclaimer in order to protect them from being sued if someone gets sick. That would change the picture, but we will not try to conjecture if that is the case here.
- The object has become hefker (ownerless). In general, an owner needs to make an actual declaration in front of others in order for his property to become hefker (Shulchan Aruch, Choshen Mishpat 273:3,7). However, in a situation in which it is clear to the observer that the owner has no interest in keeping the object, no hefker procedure is necessary (see Pesachim 6b). This is on the assumption that the specific owner does not mind if someone takes it (ibid.). If, though, he does not let others take it, it is not hefker. One who sees a situation where the clear expectation of the objective observer is that the owner no longer is interested may take it and does not need to be concerned that this owner is different (S’fat Emet ad loc.). It is even possible that even if the owner, for some strange reason, does not want others to take it (yet), his strange outlook is not halachically significant, and one may treat it as hefker (ibid.). However, if in the case you talk about, there are rational reasons for him to not want others to take it, the objects are not hefker before some process of hefker has occurred.