Photo Credit: Jewish Press

Mr. Schein wanted to go away with his family for the weekend, but wanted to do so with a budget of $250 for lodgings. Word of mouth led him to Mr. Miller.

“I’ll rent you a house for that price,” said Mr. Miller.

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“Great,” said Mr. Schein. He paid Mr. Miller and received the key to the house.

The Scheins arrived Thursday evening and enjoyed the weekend. Sunday afternoon, as they were packing up, a man came. “What are you doing here?” he asked.

“We rented the house for the weekend,” Mr. Schein replied.

“Can’t be,” replied the man. “From whom?”

“From Mr. Miller,” replied Mr. Schein. “What’s the problem?”

“This is my house,” said Mr. Hauser. “Mr. Miller rented you a house that isn’t his! He was here last month and must have copied the key!”

“I charge $500 for this house,” added Mr. Hauser. “Please pay me now.”

“But the price I arranged with Mr. Miller was $250,” replied Mr. Schein.

“I don’t care,” exclaimed Mr. Hauser.

“But even the going rate is only $400,” said Mr. Schein.

“I have no choice but to summon you to a din Torah,” Mr. Hauser said.

The two went before Rabbi Dayan. After hearing both sides, Rabbi Dayan said, “The Gemara [Bava Kamma 21a] states that if someone rents out another’s property, which is intended for rent, the dweller must pay the true owner. The Nimukei Yosef [Bava Kamma 9a] writes that he must pay the going rate even if he had arranged a lower price with the fake owner; he cannot claim that he would not have rented at the going rate.” [Choshen Mishpat 363:10]

“Could you please elaborate?” asked Mr. Schein.

“A person cannot rent out a property that is not his! Thus, you essentially dwelled in Mr. Hauser’s property without any arrangement. And in the absence of an arrangement, the dweller pays the going rate – $400 in this case.” [Choshen Mishpat 331:2, 363:6; Pischei Choshen, Sechirus 2:4, 8:4].

“But I never would have paid that price had I known in advance!” objected Mr. Schein. “Why should I have to pay $400?”

“The Ketzos Hashulchan [363:7] poses a similar question, based on the Gemara [Bava Kamma 112a],” replied Rabbi Dayan. “Inheritors, who mistakenly slaughtered an animal that their father had borrowed, pay a discounted price for the animal, not the regular value, since they didn’t expect to pay. Why shouldn’t we apply the same reasoning here?” [Choshen Mishpat 341:4; Sma 341:10]

“What’s the answer?” asked Mr. Schein.

“There are numerous explanations,” replied Rabbi Dayan. “Kehillos Yaakov [Bava Kamma #18] argues that the renter could have verified who the owner was; he can’t be considered as an anuss [forced]. The inheritors, though, had every reason to assume that the animal was their father’s since it was in his possession. Nesivos [363:8] differentiates between a borrower and a renter, who can reclaim payment from the other person and therefore must pay the going rate.” [Pischei Choshen, Geneivah 7:14]

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