Photo Credit: Jewish Press

Mr. Neuman was celebrating the bar mitzvah of his son. Months before, he arranged with the gabbai, Mr. Gruber, to rent the shul’s function hall for the duration of Shabbos.

“For a full Shabbos, the hall costs $1,000,” said Mr. Gruber. “You can pay $200 now to reserve the hall and the remaining $800 after the simcha.”


Mr. Neuman made out a check for $200 and gave it to Mr. Gruber.

Sunday morning after the bar mitzvah, Mr. Neuman thanked the gabbai for use of the hall and gave him an additional $800 check.

“I heard that your celebration carried on till 11:30 p.m.,” Mr. Gruber said.

“Yes, we had a very liebedik melaveh malkah,” replied Mr. Neuman. “It was a lovely simcha!”

“The $1,000 was for Shabbos itself,” said Mr. Gruber. “Use of the hall on Motzaei Shabbos is a separate rental that carries an additional $250 payment. You were supposed to notify me if you wanted to use the hall also on Motzaei Shabbos.”

“We discussed the melaveh malkah and you said it would be included in the Shabbos rental, since there usually aren’t functions on Motzaei Shabbos in the summer,” said Mr. Neuman. “We paid you in full what we agreed on and we finished our usage. You can’t decide now to add. It was difficult enough, as is, to cover all the bar mitzvah expenses!”

“I’m not adding now,” said Mr. Gruber. “I remember telling you from the beginning that the $1,000 rental was just for Shabbos.”

“I wish we had a written record,” said Mr. Neuman. “Now, unfortunately it’s my word against yours. The question is whether I must pay more and I’m in possession of the money. We should apply the rule: Hamotzi mei’chaveiro alav har’aya – the burden of the proof is on the plaintiff.”

The two came before Rabbi Dayan. “Does Mr. Neuman have to pay the $250?” asked Mr. Gruber.

“The application of hamotzi mei’chaveiro alav har’aya in our case is not simple,” replied Rabbi Dayan. “At first glance, it depends on when the dispute arose. If the dispute arose before the melaveh malkah, the shul is in possession of the hall and does not have to allow its use without additional payment; if the dispute arose after the melaveh malkah, Mr. Neuman is in possession of the money and does not have to pay extra. However, this is not so; the shul is considered in possession regardless.”

“Why is that?” asked Mr. Neuman.

“The Mishnah [B.M. 102a-b] addresses the case of someone who rented a house for the year at $1,000 a month, $12,000 for the entire year,” explained Rabbi Dayan. “If the year turns out to be a leap year, the two terms are contradictory as to whether we follow the monthly cost of $1,000 or the yearly cost of $12,000. The Gemara concludes that the renter must pay for the extra month, even if the dispute arose only at the end of the year, after he already lived in the house for the extra month and the issue is whether he has to pay for it.”

“What is the rationale?” asked Mr. Gruber.

“The question is rooted in usage of the property, and real estate is always considered in the possession of its owner,” answered Rabbi Dayan. “Thus, not only when the dispute arose before the leap month, but even if the dispute arose after the renter lived there and hadn’t yet paid, the landlord is considered in possession and the tenant must pay for the additional month. The same is true for any other dispute, such as the length of the rental.” (C.M. 312:15-16)

“In our case, the dispute is whether Motzaei Shabbos was included in the rental,” concluded Rabbi Dayan. “The shul is considered in possession. Thus, Mr. Neuman must pay the extra $250 for the melaveh malkah.”


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Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail