As Reuven approached a bike path in a park, he saw Shimon standing next to a bike. “Would I be able to use your bike for half an hour?” Reuven asked.
“I’ll rent it to you for $15,” Shimon answered.
“Okay,” Reuven agreed. He gave Shimon $15 and took the bike.
When the half-hour was up, Reuven returned to the starting point, but didn’t see Shimon. Instead, Levi was standing there, with an angry look on his face.
“What are you doing with my bike?” Levi asked Reuven.
“What do you mean?” asked Reuven. “Shimon rented it to me! I paid him $15.”
“That was nice of Shimon,” replied Levi, “but the bike is mine, not Shimon’s. I asked him to watch it for me. I don’t rent out my bike; he tried making a buck on me.”
“I’m sorry,” said Reuven. “I didn’t realize. I’m going to demand my money back!”
“Shimon should really give it to me!” Levi said.
The two decided to turn to Rabbi Dayan and asked: “Whom should Shimon give the money to?”
“You presumably know the halacha of zeh neheneh v’zeh lo chaser (this one gained and this one did not lose),” replied Rabbi Dayan. “A person who without permission used another’s property that isn’t intended for rental doesn’t have to pay for having used it if no damage or loss was involved” [Choshen Mishpat 363:6].
“Accordingly, the Gemara [Bava Basra 21a] states that a person who rented a house from a person who isn’t the owner must pay the true owner when the house is intended for rent, but not when it isn’t.
“Rishonim add that when the house is not intended for rent, even if the tenant already paid the third party, he receives his money back and does not have to pay the true owner. It’s considered a mekach taus, mistaken transaction [Choshen Mishpat 363:9].
“In truth, a user is liable when he demonstrates willingness to pay the owner, even when zeh neheneh v’zeh lo chaser, but with regards to this case of renting a house, the person is not viewed as willing to pay the owner. The rental proved in error, so the house was never rented and any money paid to the third party was mechilah b’taus [Choshen Mishpat 363:8; Sma 363:22; see also Aruch HaShulchan 363:20; Ohr Same’ach, Gezeilah 2:9].
“Nonetheless, the Nesivos [363:7] writes that if the third party already gave the money to the owner, he doesn’t have to return it to the renter [Pischei Choshen, Geneivah 7:13].
“In conclusion,” said Rabbi Dayan, “Shimon must return the money to Reuven, who is not required to pay Levi de facto.”
