P'ninat Mishpat: Overpaying Rent by One of the Roommates – part I | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: The original plaintiff (=pl1) is one of four women (pl1-4) who rented an apartment from the defendant (=def) in the final year of six years that def rented to a changing group that included pl1-4 and other women. Pl1 mistakenly paid much too much rent for four months, and demands that def return her overpayment. Def refuses to reimburse pl1 because he is not sure if pl1-4 as a group paid more than they were supposed to, which he claims that pl1 must prove in order to extract payment. Additionally, pl1-4 owe money for not painting the apartment upon leaving, which def paid for and wants reimbursed. The fact they did not paint or even let def paint before the next renters were scheduled to enter caused the new renters to back out of their rental, a damage that def also wants pl1 to pay for. Pl1 claimed that since she entered a not freshly painted apartment, she is not required to paint, and that in general, she is not responsible for her friends, so that def should return her overpayment.

Ruling: Beit din’s first decision was on pl1’s responsibility for her partners’ potential obligations. The Yerushalmi (Shvuot 5:1) posits that two people who borrow together from one lender are arevim (guarantors) for each other, and the Shulchan Aruch (Choshen Mishpat 77:1) applies this concept to a variety of joint financial endeavors, which includes joint renting. This is especially true here because pl1-4 signed a contract together (see Shach 129:2) and because they benefited from the fact they rented as a group.
There is a machloket Rishonim whether this type of arvut is of a regular arev or an arev kablan. The difference is that the former pays only if the partner lacks the money to pay, whereas an arev kablan can be made to pay even if the other partner is able to pay his part (Shulchan Aruch, CM 129:8,15). The Shulchan Aruch (CM 77:1) rules that they are regular arevim. Although pl1-4 have refused to pay def, def cannot yet demand payment or offset money from pl1 due to the others’ obligations. Therefore, beit din told def that to promote his full case, he must sue all of the rental partners. [He did this and pl1-4 all took part in the rest of the proceedings.]
Pl1-4 all initially claimed that they paid their part of the rental fee in full (beit din’s analysis of the records uncovered two of them, when withholding rent with def’s permission for overpaying municipal tax, had withheld hundreds of NIS too much). However, not all of them had documentation for all of their payments. Beit din demanded of def to list all of the payments he received, which def claimed he was not responsible to do. Even if def were to claim that he certainly was not overpaid, he still has to provide documentation because withholding documentation can be a sign that the information is against him (Rama, CM 75:1). The matter is clearer when a defendant is unsure whether he owes money. Not being sure is legitimate only when he is not able to know, not when he does not bother to find out (see Shulchan Aruch, Yoreh Deah 98:3, and Taz ad loc. 6).
We will continue with specific monetary claims next time.