by Rabbi Yair Hoffman

QUESTION:  Recently, while playing basketball, I tore my Achilles Heel tendon.  The recovery time, I am told is six months.  The doctor gave me a form for handicapped parking which is valid for three years.  I am wondering if I could still use the handicapped parking sign after the six month period, or is it dishonest?

ANSWER:  A lot of what you are asking is actually a medical question.  There is often a period of time where the excess walking may trigger a re-snapping of that tendon.  You need to ask an expert doctor what the chances of this happening are after the six month recovery.  If it is practically nil at say, 12 months, you should stop using the handicapped sign.  The reason is that parking in a handicapped spot is actively parking where you do not have permission to park – even if you have a handicapped sign.

The violation involved 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.

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.

There is strong indication from a Rashbam in Bava Basra 57b that sho’el shelo midaas applies to lnd as well.  He 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.

Backing up this idea is a ruling from Rav Chaim Kanievsky zt”l as related by Rabbi Pesach Krohn.  Rabbi Shimon Grama had posed the question.  If someone goes to minyan and parks in a handicapped spot it is considered a Mitzvah HaBaah b’Aveirah and one gets no credit for davening there.  This backs up the idea that trespassing on land is theft.  Rav Chaim zt”l added that it is NOT MESIRAH to call the police on someone who parked in such a spot.  So, dump the handicapped sign as soon as it is no longer applicable.

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