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Shabbat Parashat Vayechi | 5768

P'ninat Mishpat

Use of a Refrigerator Without Permission 
(from Halacha Psuka, vol. 36 – condensation of a p’sak of Beit Din Gazit of Sderot)
Case: The defendant (=def) is an organization that arranges Shabbat hospitality. They secured a room for a family in a yeshiva dorm room, in which a student had a personal refrigerator, without his knowledge. After Shabbat, pl found the refrigerator to be broken. A technician says the compressor was ruined. Pl is suing def who is not aware what happened to the refrigerator, instead of suing the family who used, dirtied and perhaps knows what happened to it because he does not want to bother with the family. Def is willing to pay if beit din says that the family is responsible to pay for the damages.
Ruling: The only logical way that the compressor could have been broken by the negligence of the family is if they left the refrigerator open for a very long time, thus over-taxing the motor. However, it is hard to accept that a normal family would have done such a thing, and it is much more likely that the old compressor stopped working due to normal wear and tear. Thus, we cannot consider the family a mazik (damager).
There is room to say that the family acted as a sho’el (borrower). The Shulchan Aruch (Choshen Mishpat 303:1) rules that a shomer (watchman, including a borrower) is obligated to pay for the appropriate losses only after he has did meshica (a physical act of kinyan by moving the object). Although the refrigerator was not moved, there are grounds to obligate based on the Netivot Hamishpat (340:8), who says that use of the object obligates a shomer even without a kinyan. If the family is a sho’el then one could propose to obligate them even in oness (damages for which they were not at fault). However, since the refrigerator was still working when the family left after Shabbat, it is like a case of one who ceased using an object and returned it, which ends his period of obligation, even if he borrowed without permission. Therefore, there is no obligation due to the laws of sho’el.
The family certainly was neheneh (received benefit) from the use of the refrigerator. The benefit can be estimated at 20 shekels, based on the differential in value of accommodations with and without a refrigerator. Had there been no damage because of their use, we would have exempted the neheneh from payment because of the rule of zeh neheneh v’zeh lo chaser (one benefited and the other did not lose). On one hand, the refrigerator was left dirty and there was added wear and tear because of the usage and when there is much benefit and small damage (even less than a peruta) one has to pay for all of the benefit (Tosafot 30b). However, beit din determined that since the dirt and extra usage did not affect the refrigerator’s value in any noticeable manner, there is not considered to be damage. Therefore, def does not have to pay anything.
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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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