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Thought for the Day: Theft of Intangibles

An interesting question came up with a chavrusa.  To understand the question, you need to know that there are many online games that are essentially multiplayer computer simulations.  One of the ways the game providers make money is to offer etools of various sorts for a price (real dollars).   The game provides provisions for players to buy/sell/loan such tools among themselves, as well as from the game provider.

Here's what transpired (names changed to protect the innocent and to comply with the laws of Lashon Hara even about the guilty):
Shmuel and Yehuda are friends playing in a game that offers, among other things, virtual e-swords for sale to be used in the game.  Shmuel owns an e-sword, but will be offline for a month, so he loans it to his friend Yehuda.  "Loan" is the term they use between themselves.  As far as the game is concerned, Shmuel has sold his e-sword to Yehuda for $0; Yehuda and Shmuel, though, have an oral agreement (no dispute on this) that Yehuda will give (that is, sell for $0) the e-sword back to Shmuel in a month.  At the time of the transaction, e-swords were going for $100.  Yehuda sees after a week that the price of e-swords is going down, so he sells the e-sword for $85.  (As far as the game is concerned, Yehuda owns the e-sword.  The lender/borrower relationship is a verbal agreement between Yehuda and Shmuel.)  At the end of the month, e-swords are now going for only $50.

Yehuda tells Shmuel that he'll either buy him a new e-sword or give him the $85 he made by selling it.  Shmuel says he wants the $100 the e-swords was worth when he lent it to Yehuda.
  1. Was Yehuda allowed to sell the e-sword in the first place?  All e-swords are exactly equivalent and always available.
  2. Can Yehuda force Shmuel to accept a e-sword in lieu of payment?
  3. If they decide on cash, how much does Yehuda owe Shmuel?
I sent this question to the Business Halacha Institute; an organization to whom I have been directed in the past by rabbanim that I consulted.  They answered as follows:
The answer to your inquiry is that Yehudah owes Shmuel “$85” the value of the e-sword at the time that he stole it by selling it.  If he “buys” an e-sword and gives it to Shmuel he fulfills his obligation to return the stolen “property”.  See REPLACING DRINKS IN A HOTEL REFRIGERATOR for a discussion of this last point.
Note that Yehuda was not allowed to sell the e-sword.  Even though he has exclusive rights to use it and he has every intention to replace it.  Theft is forbidden, even if one has in mind to return it; just as eating pork is forbidden even if one has in mind to purge.

The fact that Yehuda can force Shmuel to accept a (new, albeit indistinguishable from the original) e-sword in lieu of payment is sort of a reverse application of the usual "takanas ha'shavim" enacted to make the path to doing t'shuva as smooth as possible for a robber.  In this case replacing the "item" (that is, identical exclusive rights access to the e-sword software module) will cost less that returning the value at the time it was stolen.  Interestingly, Chazal discuss a similar case where someone stole beer before Pesach then returned it a week after Pesach.  Same beer, but now worthless because it is chameitz that was owned by a Jew over Pesach, which is forbidden by rabbinic decree.

Moral: Stop playing those ridiculous online games and get thee to a beis medrash!
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