Is It Trespass?
‘Reuven Didn’t Benefit and Shimon Didn’t Lose’
(Bava Kamma 20a)
Our daf discusses whether someone who occupied premises that were vacant is required to pay rent. The halacha (Choshen Mishpat 363:6) seems to indicate that in the unusual situation described in this Gemara, such an individual would be exempt from paying rent 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.
Tosafot (20b, s.v. ha ith’hanit) explain that all opinions concur that an owner of 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 normal, his refusal to give consent is not “characteristic of Sodom.” We must add that in our day in particular, there is an insistence on specific permission. However, demanding retroactive payment for use is “characteristic of Sodom” since he 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.
Eggs Hatched Under a Neighbor’s Hen
The poskim cite numerous variations of this halacha. The Chida (Responsa, No. 7) presents the following scenario: Reuven placed eggs to be hatched under his hen. 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, reasoning that since the chicks hatched because of his hen, he should receive a share of the profits. But the Chida refuted this argument. He absolved Shimon of all payment since Reuven incurred no loss when his hen sat on Shimon’s eggs as well as on his own.
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 that the doorway was too narrow, and even removing the appliance’s door would not be enough to squeeze the refrigerator through. The buyer of the refrigerator suggested that the deliverymen bring the refrigerator in 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 that their respective neighbors’ conduct was “characteristic of Sodom.” The defendants, however, argued that according to halacha one cannot be forced to allow someone else to use one’s property, and that such refusal being viewed as acting in a way “characteristic of Sodom” only applies after the fact – namely, regarding demand for retroactive payment.
The batei din decided differently in these two cases. The beit din deciding the case of the scaffolding in an adjacent yard upheld the objection of the neighbors. Putting up scaffolding in a yard for an extended period of time definitely makes a person feel his property encroached upon (Kovetz Shuras HaDin, volume 2, page 323, by Rabbi Moshe Menachem Farbstein).
The beit din ruling over hauling in the refrigerator through a neighbor’s window did not agree with the neighbor’s refusal. They felt that the neighbor had no reason to feel deprived of something that belonged to him since it would only require the use of his apartment for a short time. The argument that the beit din may not force someone to allow the use of his property was not admissible, and the upstairs neighbor was judged as acting in a way “characteristic of Sodom” (Rabbi Yaakov Avraham Cohen of Netanya, Israel in his Emek HaMishpat Vol. 3:1).
