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Beit Midrash Series P'ninat Mishpat

(based on Shurat Hadin, vol. II, pp. 218-227)

Chapter 136

A Benefit Provided Despite the Recipient’s Protest

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A renter wanted to paint his rental apartment in a special way for his own benefit, although it was not necessary, in a manner that would raise the value of the apartment for future renting or sale. He demanded of the landlord to take part in the expenses, but the latter, while admitting that the value would go up, refused to pay. The renter said that he would paint anyway, and then he would force the landlord in beit din to pay for his benefit. Is the landlord required to pay?
P'ninat Mishpat (576)
Various Rabbis
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136 - A Benefit Provided Despite the Recipient’s Protest
137 - Damages Done by a Worker
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In general, one needs to pay for benefit that another provided for him without his permission, with there being differences as to how to calculate the payment depending on whether the improvement was done to property that is usually slated for such activity (Bava Metzia 101a). This applies not only if there were physical additions made to the property but even if just a service was provided to increase the value. As the Rama (Choshen Mishpat 264:4) explains, we do not say that the service provider should be deemed as helping his friend for free.

If the potential beneficiary did not benefit, even if most people would, he is exempt. One way to determine that is if he said in advance that he does not want the work done (Rama, ibid.). The question remains in a case where he clearly has benefited but he informed the provider in advance that he is not willing to pay for it.

The Pri Tevu’ah (58), cited by the Pitchei Teshuva (264:4), says that he has to pay anyway. His proof is from the case of communities who need intervention before the king, where the Maharik and Rama (CM 263) say that even those communities that refused to take part in the expenses have to pay. However, that is not a good source, as the ruling is based on the idea that in a case of potential danger, members of the community can force others to take part in rescue efforts (Bava Batra 8b). This does not apply to optional improvements. Furthermore, the Maharia Halevi (II, 151) argues with the Pri Tevu’ah, claiming that it is not possible to force someone to pay when he says that he is not willing to. The Pitchei Choshen (Sechirut 8:4) claims that the Pri Tevu’ah might admit that in the case of explicit refusal to pay, he is exempt, but that does not fit in to the Pri Tevu’ah’s words. Some contemporary poskim (Orchot Hamishpatim, Tzitz Eliezer XV, 67) accept the Pri Tevu’ah’s opinion and allow extraction of money from a defendant.

However, there is proof against the Pri Tevu’ah from the Ramban and Ramah (Bava Batra 4b). Apparently when one protests the work being done, it becomes forbidden to handle the other’s property against his will, and, therefore, he cannot gain from disregarding the owner by receiving payment. The Emunat Yisrael (36) adds another reason: when there is protest, we assume the provider realizes he is acting for free, even if he gives lip service to his demand to be paid. Only in a case where the recipient takes part in the work done does he have to pay despite his original protest.
Thus, the landlord does not have to reimburse the renter for painting expenses.

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