Story LineWrong AddressRabbi Meir Orlean
Mr. Lowy owned a bungalow home. Since the house was not used all winter, he usually hired a woman to clean it before the family arrived.
This year his regular cleaning woman was not available, so he employed another woman. “I’ll send you the address in a text message,” Mr. Lowy told her. “You can get a key from the caretaker, who has a master key for all the bungalows. I’ll pay you tomorrow when I arrive.”
The woman cleaned the home, and at the end of the day reported that she had finished.
The Lowys arrived the following day. “The house is filthy!” Mrs. Lowy exclaimed. “It doesn’t look like the woman cleaned it at all!”
Mr. Lowy called the woman immediately. “What’s going on?” he asked. “The house is filthy, and wasn’t touched. What did you do?”
“I don’t understand,” said the woman. “I was there all day yesterday. I left the house spic and span! Every window and every tile shone!”
“There must be some mistake,” Mr. Lowy said. “Which house did you clean?”
“Let me look at the message,” said the woman. “Number 24, you wrote.”
“Oh, I meant number 25,” said Mr. Lowy. “I must have made a typo.”
“Regardless, I did the work that you asked,” said the woman. “I’m entitled to my full pay.”
“The owner of number 24, Mr. Singer, will be here shortly,” replied Mr. Lowy. “He should pay you.”
An hour later, the Singers arrived. “It’s amazing how shiny the windows are this year,” Mrs. Singer noted as they approached the house. “It looks as if someone cleaned them!”
Just then, Mr. Lowy came by. “Welcome!” he said. “I have a surprise for you. I ordered a cleaning lady, but gave her your address by mistake. You owe her $150.”
“I appreciate this, but we always clean by ourselves,” replied Mr. Singer. “The summer is expensive enough; I can’t afford the extra expense!”
Mr. Lowy and Mr. Singer came before Rabbi Dayan.
“The Gemara (B.M. 76a) teaches that if someone instructed an employee to work in his neighbor’s property, the employer is liable for the salary,” replied Rabbi Dayan. “However, he can demand reimbursement from the neighbor for the value that he benefited him” (C.M. 336:1).
“I didn’t order the cleaning,” argued Mr. Singer. “Why should I have to pay anything?”
“One who enhances another’s property, even without being instructed to, is entitled to compensation,” replied Rabbi Dayan. “This is known as yored l’toch sedei chaveiro or neheneh. The amount of compensation due – whether the full value or just the expenditures – depends on whether the improvement was warranted or not” (C.M. 375:4).
“The house needed the cleaning,” acknowledged Mr. Singer, “but we always clean it ourselves.”
“If the owner typically does the work himself,” said Rabbi Dayan, “even when the work is warranted, we merely evaluate how much it is worth to the owner to not have to toil” (Rama 375:4).
“Even so,” continued Rabbi Dayan, “in this case, Mr. Singer can refuse to compensate Mr. Lowy for two reasons.”
“Why is that?” asked Mr. Lowy. “I spared him hours of work!”
“Some authorities maintain that yored l’toch sedei chaveiro applies only when the person knowingly improves his neighbor’s property,” explained Rabbi Dayan. “However, if the person did the work thinking that the property was his, the neighbor is not required to pay” (Nesivos 236:7).
“Furthermore, some write that an enhanced appearance that is not essential, such as whitewashing, is not considered a capital improvement requiring compensation,” added Rabbi Dayan. “Certainly, routine cleaning is not a capital improvement, since it will get dirty again shortly (Rama 375:7, Shach 391:2). There may be a difference, though, in this regard, between a bungalow intended for the owner’s use and one intended for rent, since a clean apartment is worth more to rent that a dirty one.”
“Thus,” concluded Rabbi Dayan, “Mr. Singer cannot be required to compensate Mr. Lowy for the cleaning.”
From the BHI HotlineExtra Hotel Guest
Q. A group of bachurim rented a hotel room during ben hazmanim.
Is another boy allowed to join them and sleep in his sleeping bag without informing the hotel ownership? I know that many people take liberties with this, and I want to know if it is indeed permissible.
A. Generally speaking, the answer depends on if the hotel owner permits such a practice. If there is reason to believe that the owner knows about this practice and chooses to ignore it, there is room for leniency. But if there is reason to believe that he opposes such behavior – such as if the reservations agents ask each potential guest how many people will be in the room, and cautions them that they will charge more for additional guests or require them to rent another room – then you may not add a guest without their express permission, and if you already did so, you are required to pay for him.
Precedent for this case is found in a famous set of cases in the Gemara (Bava Kamma 20-21) that deal with a “squatter” (someone who takes up residence in someone’s property without the owner’s knowledge or consent). In some cases he will be required to pay for living there, while in other cases he won’t.
In a case of zeh choser vezeh neheneh (the property owner takes a loss and the squatter benefits) – such as if the owner planned to rent out his property and the squatter would have rented an apartment had he not taken up residence in that property – he is required to pay (Shulchan Aruch Choshen Mishpat 363:6).
If it’s a case of zeh choser vezeh lo neheneh – such as if the owner would have rented out the property, but the squatter would not have rented another place – the Rishonim debate whether the squatter is required to pay, and we rule that he is required to pay because he ultimately benefited at a cost to the owner (ibid).
In cases of zeh neheneh vezeh lo choser, which means that the owner had no plans to rent out the property, but the squatter did benefit because had he not taken up residence there, he would have rented a place, he is not required to pay as long as he did not cause even a minimal loss to the owner. If he caused any sort of damage or loss to the owner, then he is required to pay for the full value of the benefit he derived from living there (ibid. 7).
Some Rishonim rule that in most cases of zeh neheneh vezeh lo choser, the person who derives benefit is required to pay, and the reason the Gemara does not obligate the squatter to pay is becuase he actually provides a service to the owner by “housesitting” for him. Many things can go wrong in a home that is empty, and the squatter’s presence there ensures that things that break will get fixed, and that no one will damage the property while the owner is out.
According to these Rishonim, in cases in which the owner does not benefit from the squatter’s presence – for instance, if he or someone else is already living in the property and it does not have to be protected – the squatter is required to pay (Rashba Bava Kamma 21a; Nesivos 363:9). In Chiddushim 154:7, however, the Nesivos contradicts himself and rules that he is not required to pay; see Divrei Geonim 104:38 and Shu”t Even Shoham 142).
Other Rishonim rule that in all cases of zeh neheneh vezeh lo choser the squatter is absolved from payment (Rosh Bava Kammah 2:6; see Shu”t Simchas Yom Tov 28).
According to these principles, since the room rented by the bachurim cannot be rented to others, an additional bachur sleeping on the floor would be considered zeh neheneh vezeh lo choser, and according to many opinions, he would be absolved from payment, provided he does not use any of the hotel’s amenities or even wash his hands with their water or use any of the items they stock in a room.
As we wrote earlier, however, if the ownership clearly expresses their objection to additional guests, the extra bachur would have to pay, because the rules above apply only to cases in which the homeowner did not instruct the squatter to leave. If he did demand that the squatter leave and he stayed there anyway, he is required to pay (Choshen Mishpat 363:6; but Nachlas Dovid [Bava Kamma 21] argues on this ruling). We do not obligate a person to host guests against his will even if he does not lose anything by doing so. Therefore, once the homeowner protested the squatter’s presence, the squatter is required to pay even if he generally does not rent a dwelling when he has nowhere to live, which we would usually consider to be in the category of zeh lo neheneh vezeh lo choser (Sma 14).
Therefore, if the hotel owner does not allow additional guests to stay at the hotel without permission, then even though the extra bachur’s presence does not cause him any loss because he is sleeping on the floor and not using any of the hotel’s amenities, he is still required to pay for the benefit he derived by being there (see Shu”t Even Shoham 99; according to his opinion, this is a case of zeh neheneh vezeh choser, because the owner could rent that space to this additional bachur and he is therefore required to pay.)
Money mattersBrokerage Fee#469
Q: Is a broker entitled to charge for expenses, in addition to his fee? Can he charge for his efforts if he did not conclude the sale?
A: This depends on the nature of the brokerage arrangement and the common practice.
A sales agent who was hired and served faithfully is like an employee; the employer (seller) is responsible to pay for his time and expenses, as is reasonable in this field, unless the practice is not to pay for expenses. Some write that if the broker stipulated an excessive fee, it includes expenses (Terumas Hadeshen #323; Minchas Pittim 264:4; Chut Hashani #2).
If a broker did not conclude the sale, there is a dispute whether he is entitled to payment for his efforts. According to most authorities, if the broker did not initially stipulate that he should be paid for his efforts, he is not entitled to anything, since many brokers toil unsuccessfully, unless the common practice is otherwise (Beis Yosef, C.M. 185:3; Rama 264:4; Mishpat Shalom 185:6).