Is It Trespass?
‘Reuven Didn’t Benefit And Shimon Didn’t Lose’
(Bava Kamma 20a)
Our daf discusses whether someone who occupied vacant premises must pay rent for having done so. It appears (Choshen Mishpat 363:6) that in the unusual situation described in the Gemara, he is exempt from paying because he derived no benefit (since he could have stayed with friends, without paying rent) and the owner cannot claim to have sustained a monetary loss since the place was not up for rent.
Eggs Hatched Under A Neighbor’s Hen
Poskim cite numerous variations of this halacha. The Chida (Responsa, no. 7) presents the following scenario: Reuven placed eggs to be hatched under a hen he owned. Then Shimon sneaked into Reuven’s yard and placed another five eggs of his own under the hen. Later, Reuven requested payment for his share of the chicks hatched from the eggs belonging to Shimon since they hatched because of his hen. The Chida writes that this argument is invalid because Reuven incurred no loss when his hen sat on Shimon’s eggs as well as on his own eggs.
Tosafos (20b, s.v. ha ith’hanith) explain that all opinions concur that an owner of a property cannot be forced to allow free use of his unoccupied premises. An objection to such free use is not considered “characteristic of Sodom,” where anything beneficial to another person was prohibited.
Rabbi Shimon Shkop, zt”l (1860-1940), explains in his Shiurei Bava Kamma (19:3) that a person feels his ownership is violated if someone else uses his possessions without his consent. Since the behavior of the premises’ owner is perfectly normal, his refusal to give consent is not “characteristic of Sodom.” We must add that in our day and age in particular, people insist on being asked before their property is used. Demanding retroactive payment, however, is “characteristic of Sodom” since the owner incurred no monetary loss (see Pnei Yehoshua on our sugya).
This principle – that an owner cannot be forced to allow someone else to use his property – varies from case to case and can only be determined on an individual basis as to whether an owner will feel impinged upon if forced to allow someone else the use of his property.
Thoroughfare For A Refrigerator
A few years ago, a dispute arose over the delivery of a new refrigerator. When the deliverymen tried to carry it into the buyer’s apartment, they found the doorway too narrow. The buyer suggested that the deliverymen bring in the refrigerator through the upstairs neighbor’s apartment which had a wider doorway, and then lower it from the neighbor’s kitchen window and bring it in through the downstairs kitchen window. But the neighbor flatly refused. All the downstairs neighbor’s entreaties and the deliverymen’s threats were in vain. The upstairs neighbor remained firmly opposed to the idea.
Scaffolding In An Adjacent Yard
In another case, a contractor preparing to renovate an apartment wanted to set up scaffolding in the yard of an adjacent building for one month. In this case, as well, the contractor faced staunch opposition from the adjacent building’s residents.
These two incidents appeared before two different batei din and, in both cases, the plaintiffs claimed their respective neighbors’ conduct was “characteristic of Sodom.” The defendants, however, argued that according to halacha a person cannot be forced to allow someone else use of his property, and that the “characteristic of Sodom” argument only applies after the fact – if one demands payment after the property was already used.
The batei din decided differently in these two cases. The beis din deciding the scaffolding case upheld the neighbors’ objection. Putting up scaffolding in a yard for an extended period of time definitely makes a person feel his property has been encroached upon (Kovetz Shuras HaDin, volume 2, page 323, by Rabbi Moshe Menachem Farbstein).
The beis din handling the refrigerator case ruled differently. It argued that the neighbor had no reason to refuse, considering that the deliverymen only planned on using his apartment for a short period of time. His refusal, according to the beis din, was “characteristic of Sodom” (Rabbi Yaakov Avraham Cohen of Netanya, Israel in his Emek HaMishpat Vol. 3:1).