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Shabbat Parashat Achare Mot- Kedoshim| 5767
From a Va’ad Bayit’s Removal of a Resident’s Property - Part II - Based on Halacha P’suka - vol. V - Condensation of a Ruling of Beit Hadin Neve Nof
Case: A va’ad bayit (an apartment building’s residents’ council) demanded of residents to remove property from joint areas and warned that items that were not removed would be discarded. After due notice, removal began. Some residents asked for a delay in discarding their property, which was granted. However, the property of those who did not make a request was thrown into the garbage, prompting one resident to sue for damages.
Ruling: [We saw last time that landowners can prevent peers from storing items in unauthorized locations and can throw out property which is not removed, at least after giving due notice.]
The va’ad bayit’s actions were flawed in that they were uneven, as they discarded some people’s property and not others (those who requested). In a similar case, the Chatam Sofer (CM 61) considered such “discriminatory” action illegitimate. The va’ad bayit later explained that their intention had been to find out which items were ownerless, and anyone who would have claimed his property could have avoided their being thrown out. However, this fact was not made clear to the plaintiff, and they should not have thrown out items selectively.
Is the va’ad bayit liable for its missteps? The Shulchan Aruch (CM 176:8) rules that partners who are mutually obligated to look after each other’s property are like paid watchmen for them. However, if one does so voluntarily, he has lesser liability, like an unpaid watchman. Therefore, if the residents must take turns serving on the va’ad bayit, they are like paid watchmen. If someone volunteers for the job more permanently, he is like an unpaid watchman. Furthermore, he may have the status of a custodian, who, according to the Shach (CM 290:25), is exempt from payment even for negligence. Therefore, one cannot extract money from the member of the va’ad bayit who mistakenly threw out items selectively
However, perhaps we should treat the action of throwing out not as negligence but as active damage. On the other hand, we must consider that the va’ad bayit duly warned the residents, tried various methods to rectify the problem, and had no intention to discriminate. Therefore, we should treat the actions as negligence, not direct damage, and exempt them. Despite this, because the sides agreed to a compromise, beit din will allow the plaintiff to take half the value of the discarded property off from future dues payments.
Should the worker who physically threw out the property be the one to pay? If the action was unwarranted, it was forbidden. We have a rule that the agent, not the one who sent him, is responsible for forbidden acts he perpetrates. However, since the worker was not apprised sufficiently of the happenings in the building to know it was forbidden to discard property in these circumstances, he is exempt from payment, while the va’ad bayit is obligated.
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