For years, Mr. Adler had taken the same train to the corporate offices downtown. Rain or shine, summer or winter, he was there by 9 a.m., coffee in hand.
When the Neuman family moved onto the block, Mr. Adler learned that Mr. Neuman drove daily to the very same office tower, leaving at about the same time.
One morning, Mr. Adler met him outside. “We’re heading to the same place,” he said pleasantly. “Would you mind if I joined you in your car today? You’re going anyway.”
Mr. Neuman graciously agreed. Mr. Adler began joining him on a regular basis.
One day, Mr. Neuman said politely, “I don’t mind having company – but if we’re commuting together every day, I think it makes sense to split the cost of gas and tolls 50-50.”
Mr. Adler raised an eyebrow. “Fifty-fifty? I’ve been paying for just a train ticket all these years. I’m happy to chip in something comparable, but half the gas and tolls feels like I’m subsidizing your driving.”
Mr. Neuman shook his head. “Why should I pay the bulk of the cost while you benefit equally from the ride?”
“You’re driving anyway,” Mr. Adler responded respectfully but firmly. “My joining doesn’t cost you anything. We have the principles of ‘zeh neheneh v’zeh lo chaser’ and ‘kofin al midas Sedom’ – we compel someone not to withhold benefit from another when it causes him no loss. So, I shouldn’t be obligated to pay more than a nominal amount.”
“But it’s my car, my gas,” Mr. Neuman answered calmly. “If I want to charge for the ride, that’s my right. No one can force me to allow use of my property for free. I think it’s fair to split 50-50.”
They agreed to present their question to Rabbi Dayan:
“Can Mr. Neuman refuse to allow Mr. Adler to join unless he shares the cost 50/50?”
“There are two related but distinct principles involved here,” replied Rabbi Dayan.
“‘Zeh neheneh v’zeh lo chaser’ addresses whether a person who already received benefit that came at no cost to the owner must pay. Usually, the person who benefited is not liable ex post facto unless the owner told the person to leave (B.K. 20b-21a; C.M. 363:6).
“‘Kofin al midas Sedom,’ on the other hand, addresses whether we can compel a person beforehand to forgo certain rights to allow another to benefit when it causes him no detriment. For example, if partners need to divide property, and A can benefit by receiving a specific half whereas to B there is no difference, must he allow A to take the beneficial half? The Amora’im, Rishonim, and poskim dispute this point (B.B. 12b; C.M. 153:8, 154:3, 174:1; Pischei Choshen, Geneivah 7:10[34], 8:1[1]).
However, Rema (363:6) cites from Mordechai (B.K. #17) that even kofin al midas Sedom does not require you to allow use of your property for free, even if it entails no loss, because you could gain by charging others instead for the same use.
Thus, a person who has a vacant apartment can refuse to allow use of it for free, because he could rent it out if he wanted to.
Mordechai’s rationale indicates that if the owner cannot gain otherwise from others, we seemingly would apply kofin to allow this person to benefit for free. However, the Acharonim point out that other Rishonim disagree and maintain that we can never force a person to allow free use of his property against his will, because this itself is an impingement upon his ownership rights, and, furthermore, he can utilize his superior position to make this person pay (Pischei Teshuvah 363:3; 170:1).
Thus, even if Mr. Neuman has no option of other carpool participants or potential passengers for pay, according to these Rishonim, we cannot compel him to allow Mr. Adler to join for free or for a nominal payment.
“Furthermore, many Acharonim add that slightly increased expenses of gas or even the driver’s preference for privacy or flexibility constitute legitimate interests,” concluded Rabbi Dayan, “so that ‘kofin al midas Sedom’ does not apply. It is best to work out an agreeable sum.”
Verdict: Mr. Neuman may refuse to take Mr. Adler unless he agrees to pay equally; ‘kofin al midas Sedom’ does not obligate him to allow Mr. Adler to ride in his car for a minimal share of the expenses.