The Greens visited Israel yearly. Sometimes they rented an apartment but most often stayed with relatives.
During their last trip they visited their friends, the Hausers. “We recently built an additional, separate unit,” Mr. Hauser said. “Next time you visit, you can stay with us.”
Half a year later, Mr. Green called Mrs. Hauser. “We’re planning to come at the end of November,” he said. “If your unit is available, we’re happy to stay with you.”
“Yes, it’s available then,” said Mr. Hauser. “We’ll be happy to host you in the unit.”
At the end of their trip, Mr. Green thanked Mr. Hauser for the pleasant accommodations.
“I’m glad you enjoyed the unit,” said Mr. Hauser. “We charge $700 for the week.”
“I thought that you invited us to stay as guests, gratis,” Mr. Green. “You never said anything about paying. We could have stayed with our relatives.”
“Had we hosted you in our house, that would have been as guests,” said Mr. Hauser. “However, we invested a lot of money to build the unit and typically rent it to visitors.”
“You’re entitled to charge, but you have to say so up front,” said Mr. Green. “When you said that we’re welcome to stay with you, we assumed you meant for free.”
“Why should you assume that?” countered Mr. Hauser. “When someone provides goods or services it’s usually for pay, unless clear otherwise.”
“We can call Rabbi Dayan,” suggested Mr. Hauser. He called and asked:
“Are the Greens required to pay for use of the unit?”
“There is a seeming contradiction in the Rema on this issue,” replied Rabbi Dayan.
“In one place, Rema (C.M. 246:17) cites from Terumas Hadeshen (#317) that if a person tells another, ‘Eat with me,’ he can charge the ‘guest’; we do not assume that he offered to feed him for free. Therefore, a person who agreed to support his son-in-law at his table for several years, and continued to feed him beyond the stipulated time, can charge the son-in-law, unless there is indication that he fed with intent not to charge, and only afterwards changed his mind and demanded payment. He rules similarly in Y.D. (253:5).
“Elsewhere, however, Rema (C.M. 363:10) cites from Beis Yosef in the name of Rashbatz (1:174) that if a person tells another, ‘Live in my property,’ he does not have to pay rent, which seemingly indicates that we assume he offered it gratis. In truth, Rashbatz discussed a property that was not intended for rent, for which a person is exempt even if he entered without permission. The Gra (363:31) interprets the Rema accordingly.
“However, Rema does not mention this qualification. Thus, Bach (363:7; Responsa #39) sees these rulings as contradictory, whether to consider an unspecified offer as gratis, and considers the issue an unresolved dispute, so that hamotzi meichaveiro alav hare’aya. Therefore, in the case of a person who was renting a seat in shul, and someone offered him to sit, instead, in his more distinguished seat, Bach ruled that the person is exempt, but if the second person holds money of his, he can retain it.
“Shach (246:9; 363:13) concurs with the Bach. He further writes that if the unit is not intended for rent or if the ‘guest’ typically does not rent, such as if he usually stays with relatives or friends, he is certainly exempt, since he did not cause the owner a loss of potential alternate rental of his own initiative, but rather through the owner’s initiative. However, Beis Shmuel (70:28) concludes that an unspecified offer is not assumed to be for gratis” (see also Ketzos 246:2; Pischei Choshen, Sechirus 8:34[70]).
“Thus,” concluded Rabbi Dayan, “since the Greens often stay with relatives, they are exempt. Some poskim rule they are exempt even if they typically rent.”
Verdict: There is a dispute whether a person who offers another to eat or stay with him without specifying can charge payment. Some poskim consider it an unresolved dispute, and rule that the money remains with whoever is in possession.
