Rabbi Meir Orlean
The Millers rented an apartment for Sukkos in Yerushalayim. Before leaving, they came to pay the landlord.
“We owe you $1,500 for the apartment,” said Mr. Miller.
“How many were you?” asked the landlord.
“We were six,” replied Mr. Miller.
“The apartment was $1,500 plus an additional $250 for each person beyond four,” replied landlord. “The total is $2,000.”
“I don’t remember that,” said Mr. Miller. “I remember that my wife told me $1,500.”
“The price is for four people,” replied the landlord. “That is what I tell everyone when they call. I assume that I told her also.”
“We had asked you to send an email confirmation of the price and you didn’t,” said Mr. Miller. “At this point, there’s no record of what we arranged. I’m willing to split the difference with you and pay $1,750.”
“OK,” agreed the landlord.
When the Millers returned home, they tried to locate their initial communication with the landlord. Finally, Mrs. Miller found a paper with various rental options and price quotes. “I see that I wrote $250 per additional person,” she said. “We owe the landlord another $250.”
“At this point, it’s over,” said Mr. Miller. “We already compromised with the landlord and settled with him.”
“Do you think that’s fair?” asked Mrs. Miller.
“All compromises are like that,” he answered Mr. Miller. “You might gain; you might lose.”
“But the compromise was a mistake,” said Mrs. Miller. “Had we had this paper with us, we never would have questioned the price. He wouldn’t have settled for $1,750.”
“I hear your point,” said Mr. Miller, “but I’m not sure it matters. I’ll consult Rabbi Dayan.”
Mr. Miller called Rabbi Dayan. “I had a dispute with the landlord about the rent,” said Mr. Miller. “We settled with a compromise, but I later discovered that he was right. Must I pay the remainder?”
“The Gemara (B.M. 66b; B.B. 41a) teaches that mechilah b’ta’us (forgoing in error) is not valid,” explained Rabbi Dayan. “For example, a person who drew his property line in error does not forgo that property to his neighbor” (C.M. 142:2; 241:2).
“Similarly, if a person compromises in error, the compromise is void, since compromise entails mechilah,” continued Rabbi Dayan. “Thus, Rashba (Responsa 2:278) rules that if someone denies a claim and the plaintiff had to settle, the defendant is not exempt klapei Shamayim (as far as the Heavenly Court is concerned). The plaintiff was forced to settle to partially recoup what was being denied. Furthermore, the compromise was in error, since the plaintiff was not aware that he had proof, documentation or witnesses. The same is true if the defendant later concedes” (C.M. 12:14-15; Aruch Hashulchan, C.M. 12:13).
“I acted in good faith, though,” noted Mr. Miller. “I wasn’t aware of what was written.”
“Indeed, Nachalas Shivah (24:4.2) writes that it is considered ta’us only if one party was aware and misled the other party,” replied Rabbi Dayan. “However, if both parties were unaware of the facts and settled, it is not considered a compromise in error, since both entered the compromise with this intention, to gain or lose partially.
“Zichron Yosef disagrees and maintains that even if neither party knew, it is considered ta’us and void, like the case in the Gemara where the property line was drawn in error,” added Rabbi Dayan. “This is assuming that the information existed at the time of the mechilah or settlement, but the parties were unaware of it. However, events that occurred afterward do not render the mechilah in error” (Pischei Teshuvah, C.M. 241:3; 12:20).
“What about our case?” asked Mr. Miller.
“According to Nachalas Shivah, since both of you were unaware, it is not considered mechilah b’ta’us; according to Zichron Yosef, it is,” replied Rabbi Dayan. “On account of the dispute, you are not required to pay the difference. It is questionable, though, whether there is a moral obligation” (Pischei Choshen, Halvaah 2:33).