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Shabbat Parashat Yitro | 5768

P'ninat Mishpat

The Responsibility of a Landlord for Water Damage to the Tenant

(based on Halacha Psuka, vol. 38 – condensation of an unpublished p’sak of the Beit Din Mishpat V’Halacha B’Yisrael)


Case: The plaintiffs (=pl) rented an apartment from the defendant (=def). Soon before the end of the rental, they traveled abroad for a few weeks and, when they returned, found the apartment flooded by a seriously leaking hot water tank, with the content of several boxes of their belongings damaged. They claim that since the tank belongs to def, he must pay for the damage and add that def accepted upon himself to pay for the damages and only afterward withdrew his commitment. Def claims that he is not responsible for damages that occurred to the apartment while it was rented to pl and that, in any case, the damage occurred because of pl’s extended stay abroad.

Ruling: The damage was done by the water from the tank. While def is the owner of the tank, pl would seem to be the owner of the water, for which he pays, from the time it passes through the water meter.

Even if the water did belong to def or we would consider his tank to be the object that effectively caused the damage, we should still exempt def for the following reason. The mishna (Bava Kama 44a) says that if an animal was given over to any type of watchman, the watchman takes the owner’s place regarding to the responsibility to pay. Therefore, although the apartment belongs to def, it is pl who is responsible for damages that are caused by the property during the time it is under his control. It is true that Rishonim dispute whether the giving of an object to a watchman fully undoes the owner’s responsibility (see Rambam, P’er Hador 39 and Ra’avad, Nizkei Mamone 4:4). However, that is in reference to third parties; there is no room to say that the owner would have to pay the watchman for damage to the latter under his watch (see Sha’arei Shaul, Bava Kama 1:7).

In general, only regarding damages that a person does himself (as opposed to damage done by his property) is it possible to make one pay regardless of negligence on his part (Shulchan Aruch, Choshen Mishpat 396:2). Since def had no reason to expect that his (relatively new) tank would spring a leak and, to the contrary, it was pl’s prerogative to have closed the pipes before leaving, put his belongings in a place they would not have been damaged, or ask someone to check in on the apartment, it is not possible to obligate def.

Regarding the alleged self-obligation of def to pay for the damages (which def denies) one can obligate himself in a binding manner after the damage already occurred only by making a kinyan. One could consider whether there is a moral obligation to keep his word, as we find for one who asserts that he will give his friend a present (see ibid. 204:8). However, that is only when the present is a small one (ibid.) and, in our case, pl is claiming a relatively large sum of money.

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This edition of Hemdat Yamim is dedicated in loving memory of

R ' Meir ben Yechezkel Shraga Brachfeld


 Hemdat Yamim is endowed by Les & Ethel Sutker of Chicago, Illinois in loving memory of

Max and Mary Sutker

 and Louis and Lillian Klein, z”l.

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