By the Bais Hora'ah
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.)