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Shabbat Parashat Haazinu| 5767
Taking Part in Paying Rent for a Shared Building - Based on Shurat Hadin, vol. VIII, pp. 99-101
Case: The plaintiffs and the defendants have been sharing a building for their respective elementary school and nursery for decades. The municipality had been paying rent to the owner of the building but, a few years ago, started charging the plaintiffs for the rent (improperly, according to both litigants). The plaintiffs demand that the defendants pay rent, corresponding to their (minority) portion of the building. The defendants feel that as a “mandatory” nursery, the municipality will not make them pay their portion, but, in the meantime, the municipality has refused to give them an exemption. Because the municipality threatened to vacate the building if the rent were not paid, the plaintiffs had to date paid the entire rent.
Ruling: This case resembles that of the Rama (Choshen Mishpat 264:4) that if two people were in jail and one spent money which enabled the two of them to go free, the second person has to contribute toward the cost of their freedom. Only if beit din believes that the presence of a second inmate did not increase the expenses is he exempt from paying because of ze neheneh v’ze lo chaser (one gains without the other one losing). The Rama continues that if the person who expended the money did so specifically on behalf of the two of them, then the second one is required to pay his part in any case. The Netivot (ad loc.:6) explains that the reason that one can obligate the second person in the latter case is based on the fact that, from the outset, the one who pays can force his counterpart to chip in. The precedent for this rule is the Shulchan Aruch, CM 272:15, which states that if bandits set upon a caravan of travelers, the victims can force each other to ransom themselves using a certain system of calculation.
In this case, the defendants cannot claim that they would have gotten themselves out of payment and did not need the plaintiffsto pay because they had toiled unsuccessfully to do so. In this case also the plaintiffs had turned to the defendants previously to take part in the payment, in which case it is considered that they paid on behalf of both groups. Even if we would want to apply the concept of ze neheneh v’ze lo chaser, over here the Netivot’s logic, that one could have forced the other to take part, applies.
There is additional logic to obligate the defendants. When the plaintiffs allowed the defendants to occupy part of the building, they certainly did not intend that if there would be payment, they would have to pay extra on behalf of the defendants as well. It is true that the defendants claim that they had control of their section prior to the plaintiff. However, it is evident from the fact that the municipality lists the plaintiffs as the property’s tenants that the agreement went through them originally.
Therefore, the defendants must pay their part of the rental obligation.
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This edition of Hemdat Yamim is dedicated to the memory of
R' Meir ben Yechezkel Shraga Brachfeld o.b.m.
Hemdat Yamim is also dedicated by Les & Ethel Sutker of Chicago, Illinois
in loving memory of
Max and Mary Sutker
and Louis and Lillian Klein, z"l.
May their memory be a blessing!