Story LineUnacceptable Apartment MateRabbi Meir Orlean
Aharon and Akiva had shared an apartment for a number of years.
“Mazel tov!” Aharon announced. “I just got engaged! I’ll be leaving the apartment in two months.”
“What about our lease?” asked Akiva. “We have half a year left. I can’t cover the rent myself for the remainder of the year.”
“I’ll get someone else in my place,” said Aharon. “The lease allows subletting with the landlord’s approval.”
Two weeks later, Aharon informed Akiva: “I found someone to replace me.”
“Who?” asked Akiva. “Someone I know?”
“Ariel,” replied Aharon. “You might know him.”
“Ariel!” exclaimed Aharon. “He’s a neat freak. I can’t live with him; he’ll drive me crazy!”
“I already got the landlord’s approval,” said Aharon. “He was very happy to have a neat tenant in his apartment.”
“But I don’t agree!” insisted Akiva. “We rented the apartment together. I agreed to be your apartment mate, but you can’t impose Ariel on me!”
“If you don’t want Ariel, you can keep the apartment on your own, or find your own apartment mate,” said Aharon. “I fulfilled my responsibility by finding someone else to replace me, so I don’t have any further liability for the rent.”
“That’s not true,” argued Akiva. “You can’t force on me someone I don’t agree to, and you remain liable for your half of the rent until you have a suitable replacement!”
“I think he is suitable,” replied Aharon. “You can’t bind me to the rent at your whim.”
“It’s not a whim,” said Akiva. “I once tried rooming with Ariel and it didn’t work out well. You can’t force him on me.”
The two came to Rabbi Dayan. “Aharon is leaving our shared apartment, and wants Ariel to replace him,” said Akiva. “Can I object to Ariel and require Aharon to pay rent until he has a satisfactory replacement?”
“Akiva has a rightful claim,” answered Rabbi Dayan. “Shulchan Aruch rules that Aharon cannot sublet his half of the apartment to someone against Akiva’s will” (C.M. 316:2).
“Why is that?” asked Aharon.
“This is because people are typically particular about whom they live with,” replied Rabbi Dayan.
“Could you please elaborate?” asked Akiva. “What is this based on?”
“The Rosh writes in his responsum (1:2), regarding partners who rented a dwelling unit, that one cannot sublet his half to a third party whom the other partner objects to,” explained Rabbi Dayan. “People are particular about whom they are willing to live with, so the remaining partner can claim that he agreed to live with the initial partner, but not with the third party. This can be either because of the importance or lowness of the third party, or because he may be a person of strife or untrustworthy.”
“Is this ruling accepted by all?” asked Aharon.
“Rosh points to the case of a shipper addressed in the Gemara (B.M. 79b),” added Rabbi Dayan. “According to Rav Chananel’s explanation, cited in Tosafos, the owner of the cargo sold it midway to another. Although the shipper has a rightful complaint about the change of ownership, he has no legal claim, since he suffers no economic loss, which could apply here, too. Nonetheless, Rosh differentiates between a shipper who rents to a wide variety of people and does not have a personal relationship with them, and partners in a dwelling.”
“Darchei Moshe (C.M. 316:2-3) and Gra (316:8), however, note that Rambam (Hil. Sechirus 5:5) seemingly equates the shipper case with real-estate rental, against Rosh, who differentiates between them,” replied Rabbi Dayan. “Nonetheless, Darchei Moshe concludes that Rambam does not argue with Rosh, since it is common for cargo to change owners. Furthermore, shipping is only for a short duration, and the relationship is not one of partners” (Pischei Choshen, Sechirus 4:10).
“Thus,” concluded Rabbi Dayan, “Aharon cannot transfer his half to someone unacceptable to Akiva.”
From the BHI HotlineStumped by the Tree
Q. My neighbor has a tall, aging tree in his front yard, and several gardeners I consulted with unanimously agreed that it is rotting and in danger of falling and hurting a passerby or one of the neighbors. Is my neighbor required to cut down his tree? If he doesn’t, am I allowed to cut it down myself without asking him?
A. The Shulchan Aruch (416:1) states that if a person has a rickety wall or tree that is in danger of falling and hurting the public [or a even a single neighbor – Shu”t HaRashba 3:164, cited by the Beis Yosef], beis din will warn him that if he does not take it down by a certain date and it falls down and injures someone, he will be responsible for damages, under the category of bor (a pit). The deadline is generally thirty days from when beis din issues the warning, but if the danger to the public is imminent, beis din can force him to take action immediately.
The Rema writes that this warning can be issued only by a beis din, not by an ordinary person.
Some poskim say that Rema’s limitation only applies if it is not obvious that the wall is shaky, because the owner can then claim that he didn’t realize it would fall, but if the danger to the public is obvious we do not need beis din to issue the warning (Toras Chaim, Bava Kamma 6b; Divrei Geonim 56:16). Others rule that even if the danger is obvious, the owner can still claim that he didn’t realize he would be responsible for damages caused by the falling tree or wall, so we still need beis din to issue the warning (Perishah 1; Erech Shai, Nesivos 307:1).
[We are only discussing the monetary aspect of this case, but obviously, if there is a chance of people getting injured, the owner has a responsibility to prevent that eventuality even without a warning from beis din.]
The answer to your first question, then, is that if someone might be injured if the tree falls, then your neighbor must remove the tree to eliminate the danger. In contrast, if you are being damaged by circumstances that are typical for properties bordering trees – for instance, the roots are encroaching into your property – you are obligated to take care of the problem, not the owner of the tree (Shulchan Aruch ibid. 155:26-32).
In regard to your second question, the Shulchan Aruch (ibid. 392:1) rules that if a tree must be cut down because it is a danger to the public, and someone cuts it down without first informing the owner, he is not required to reimburse the owner for the value of the tree, because it is considered worthless, since it must be chopped down.
He might owe the owner money for a completely different reason, however. The Gemara states that a person who “stole” another person’s mitzvah is required to reimburse him for it. The poskim deliberate how much a person must pay for stealing a mitzvah. Some say that the dayanim evaluate each case individually, weighing factors such as how much effort goes into performing the mitzvah and how much the person it was stolen from tends to value his mitzvah observance. Others say that there is a standard penalty of ten zehuvim, which, based on current gold prices, is over $550 (Shulchan Aruch ibid. with Sma 1; Shiurei Torah 3:45. According to Sma 88:2 it might be valued at a much higher rate. See Shach, Yoreh Dei’ah 305:1).
Nowadays, beis din does not fine people for stealing mitzvos, but if the person it was stolen from seized money or an object from the mitzvah thief, he may keep it as compensation for the stolen mitzvah.
Returning to our case, it is a mitzvah to prevent damage from befalling others – even if there is no chance of danger to life and limb, only monetary damage (Even Ha’ezel, Nizkei Mammon 5:1; see Dvar Avraham v. 1, 37:35) – so someone who stole that mitzvah would be obligated to pay for it. Since cutting down your neighbor’s tree would be stealing his mitzvah, you should ask him – in a pleasant way – whether he plans to do something about his tree, and inform him that if not, you will cut it down at his expense.
Money mattersBroker Acquiring for Himself#466
Q: I was given an item to sell for a certain price. I decided to acquire it for myself. The price rose, and the owner insists on my paying the higher price. I claim that I already acquired the item at the initial price. What is the halachah?
A: Shulchan Aruch rules that the broker cannot acquire for himself without the owner’s knowledge or agreement. This is because the agent is like the owner, and a person cannot sell to himself. However, if the owner agreed to sell to you explicitly or implicitly (through silent acknowledgment), he annulled your agency and you acquired at the initial price (C.M. 185:2; Sma 185:4).
Others maintain that the broker can acquire, since the owner’s intention is to sell to whoever will pay the set amount, including the agent, so that the agency is null when you decide to acquire (Shach 185:3; Machaneh Ephraim, Shluchim #20).
Thus, on account of the dispute, you cannot be charged the higher price, since you are in possession (Mishpat Shalom 185:2).