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P'ninat Mishpat

קטגוריה משנית

462

Case:

An elementary school (=pl) and a pre-school (=def) shared a building under the municipality’s control for many years, rent free. Three years ago, the municipality started charging rent, but has made the demands specifically of pl, who uses the majority of the building. Pl asked the municipality to charge them only for the section they use, but they refuse. Pl asked def to share in the rent corresponding to their usage of the building. Def said that the municipality would not charge them because pre-schools are their responsibility to provide for the public, but the municipality says that they do not accept this regarding def, which is not a public school. In the meantime, the municipality sent pl a warning that if they do not pay in full, the building will be vacated of all of its present inhabitants. Pl paid in full and now wants def to reimburse them. In the background there is also a related historical debate. Pl said that the whole building was given to them, just that they accepted the municipality’s request that def utilize part of it. Def said that they had use of their part of the building before pl received theirs.

Ruling: This case is related to the following statement of the Rama (Choshen Mishpat 264:4). If two people were in jail and one paid money which caused the two of them to be freed, the other one has to reimburse him appropriately. If it is determined that no extra money was added to get the second one out, then the second does not have to pay him unless the first made the payment specifically with the two of them in mind. The Netivot Hamishpat (264:6) explains that the reason the second one has to cover his part is that the first one could have forced him at the time to pay the expenses that were being outlaid.
Even according to the S’ma (264:13), who says that the second prisoner can argue that he could have gotten out without his friend’s help, he can only claim this at the time he was already extricated. In this case, pl has been appealing to def for three years either to pay or to present an exemption, and therefore the payment that they made on behalf of the two of them should need to be reimbursed. There is a halachic limitation that could be considered here based on the concept of mavriach ari, that if all A does on behalf of B is remove a problem that could potentially have affected B, then B does not have to reimburse A. However, in cases where there is no reason to believe that B could have extricated himself (e.g., he owes money to a non-Jew - Rama, CM 128:1), he does have to pay - and here, there is no reason to believe that after ongoing failure in their efforts to garner an exemption, def would succeed now.
There is another reason to obligate def here. All indications are that, historically, pl let def have a room in the building, which had been given to pl. It does not make sense that they would do so under such circumstances that pl would be paying def’s rent. Therefore, even if we could not obligate def to pay (which, apparently, we can), if def is not willing to pay, pl can ask def to leave the premises.