Editor’s note: Parties to a dispute are almost always supposed to seek compromise (peshara) rather than strict din. In fact, the Gemara (Bava Metzia 30b) states that Yerushalayim was destroyed because cases were settled based on din (rather than lifnim meshuras hadin). We encourage readers, therefore, to read this column – which often addresses human disputes – as a source of Torah knowledge, not a guide for ideal Torah behavior.
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The Brauns and Wolfs shared rights in a summer home for the months of July and August. The two families had no formal agreement and were flexible, but typically alternated weeks.
This year, the Wolfs spent all of July and the first week in August in Israel for a bar mitzvah and wedding. Meanwhile, the Brauns made good use of the summer home, and were there for all of July.
When Mr. Wolf returned, he called Mr. Braun. “I heard that you used the summer home well,” he said.
“Sure, why not?” replied Mr. Braun. “We both own it, so why not use it fully!”
“There are three weeks left to the summer,” Mr. Wolf said. “We’d like to use the home for the rest of August.”
“We planned to use it towards the end of August,” replied Mr. Braun. “It’s unpleasant to spend the rest of the summer in the city.”
“You had the home for all of July,” reasoned Mr. Wolf. “It’s only fair that we should have it for the remainder of August.”
“I see no reason to give up our rights for August,” argued Mr. Braun. “You chose to go away. You could have stayed and used the home.”
“If you want to split August,” said Mr. Wolf, “then pay me rent for half of July.”
“Rent?!” responded Braun. “The home is mine like it’s yours! Why should I have to pay you rent?”
“You used my half for all of July and are not allowing me to use your half for August,” insisted Mr. Wolf. “It’s only fair, then, that you should pay for my half that you used.”
The two approached Rabbi Dayan. “Do I have a right to demand use for the remaining weeks?” asked Mr. Wolf. “Alternatively, does Mr. Braun owe me rent?”
“The Rashba [Responsa 2:141] addresses a similar case – of two partners who shared a permanent seat in shul,” answered Rabbi Dayan. “One partner used it for a number of years. He rules that the other partner cannot demand to use it for an equivalent time or receive rent.”
“Why not?” asked Mr. Wolf.
“The Rashba explains that for the duration of the partnership, each party awards his share to the other temporarily while using it,” replied Rabbi Dayan. “In the absence of an arrangement, whoever comes first to shul that day can use the seat, and while using it, it is completely his. Therefore, he does not have to pay rent or allow the other party an equivalent usage since the seat was his while he sat on it.”
“The Rema cites the Rashba,” continued Rabbi Dayan. “The Rashba and Rema spoke about something that cannot be divided, such as a seat or small courtyard, but the Rashba is explicit that the same is true for something that could be divided, such as a large courtyard, so long as the two are partners.” [Choshen Mishpat 171:8; Beis Shlomo, vol. 1, Choshen Mishpat #48]
“The Rashbatz [3:208) also exempts him, but for a different reason,” added Rabbi Dayan. “Since the property was not intended for rental, and the party who was away lost nothing, the person who used his partner’s half is exempt because of ‘zeh neheneh v’zeh lo chaser.'” [Choshen Mishpat 363:6; Beis Yitzchak Choshen Mishpat #44]
“Would this apply even if one party had prevented the other from using the joint property?” asked Mr. Braun.
“If the other party also wanted to use the property, but the one using it prevented him, he is required to pay for the usage,” replied Rabbi Dayan. “The rationale of the Rashba and Rashbatz is that the other party also could have used the property and suffered no loss. Therefore, when the person who used the joint property prevented the other party from using it, he is required to pay for having used the other party’s share.” [Beis Shlomo, ibid; Maharsham 1:8; Pischei Choshen, Shutfim 4:33(63)]
“In the future,” concluded Rabbi Dayan, “I recommend reaching an agreement beforehand.”
