By Rabbi Meir Orlian
The Greens bought an apartment in a condominium complex. Sometime after they moved in, there were a number of break-ins. One morning, Mr. Green met his neighbor Mr. Fuchs. “Another break-in!” he exclaimed. “Has it always been like this?”
“Not at all,” replied Mr. Fuchs. “Until this year, break-ins were few and far apart.”
“We need to do something,” said Mr. Green. “We can’t go on like this.”
“What do you suggest?” asked Mr. Fuchs.
“We should hire a doorman,” he replied.
“That’s a big expense,” responded Fuchs. “I’ve been here a while and know that some people, including me, will object to any additional expenditure. A number of break-ins does not mean it’s become the norm.”
Mr. Green told him he would suggest it to the managing agent, and that evening he met with the manager and suggested hiring a doorman. “Other people also mentioned this, but we’ll require an additional $400 per family each month,” said the manager. “I’m not sure everyone will agree.”
The manager circulated a questionnaire asking about hiring a doorman. Most of the tenants were in favor. He sent out a memo to the tenants: “In light of the recent burglaries, we’ve decided to implement additional security measures, including hiring a doorman.”
When Mr. Fuchs got the memo, he replied: “This is an extreme expense; I refuse to pay.”
The manager told him, “Most tenants were in favor. You’re part of the building, so you have to pay.”
“I don’t think it’s fair,” replied Mr. Fuchs. “I have a burglar alarm on my apartment, so I don’t need a doorman.”
“Unfortunately, the thieves also broke into apartments with burglar alarms,” said the manager. “Anyway, the majority wants it; the minority has to follow.”
“That’s not always true,” objected Mr. Fuchs. “Let’s discuss the issue with Rabbi Dayan.”
Mr. Fuchs and the manager went to Rabbi Dayan. “We’ve had a rash of burglaries and most tenants want to hire a doorman,” said the manager. “Mr. Fuchs does not agree with the expense. Does he have to pay?”
“The answer to this question depends mostly on the common practice,” replied Rabbi Dayan. “It varies from case to case.”
“What are some of the considerations?” asked Mr. Fuchs.
“The Mishnah (B.B. 7b) teaches that tenants of a joint courtyard can require each other to build a door and entranceway for the courtyard,” explained Rabbi Dayan. “The Shulchan Aruch, citing the Rambam, expands this to include anything that the courtyard has a great need for or that is commonly done in that locale” (C.M. 161:1).
“What does ‘commonly done’ mean?” asked the manager. “Most buildings don’t have doormen, but many upscale buildings do.”
“We would look at comparable buildings,” replied Rabbi Dayan.
“What if it is not clear whether there is ‘a great need’?” asked Mr. Fuchs. “Some people think it’s absolutely necessary; others don’t.”
“In that case, there should be a general assembly of the tenants,” replied Rabbi Dayan. “Each person should present his opinion honestly for the joint benefit of the building. The opinion of the majority becomes binding. If the majority agrees that it is not a great need but nonetheless would like to do it, they cannot require the minority to participate, unless there is a clear common practice or a contract that the majority opinion or management decision is binding on all issues” (see Rema, C.M. 163:1; Emek HaMishpat, Shecheinim 48:9–12).
“And how should the cost be split?” asked the manager.
“In principle, partners should share costs proportional to the benefit that they receive,” replied Rabbi Dayan. “Therefore, security costs should be split based on each tenant’s wealth, since a wealthy person has a greater need for the doorman than a poor person. However, nowadays it is very difficult to evaluate things this way. It seems that the practice is to share equally, and we already mentioned that the common practice is most significant” (see C.M. 161:3; Pischei Choshen, Nezikin 15:).
From The BHI Hotline: Replacing Drinks
In A Hotel Refrigerator
The second question is whether you may take a bottle of water and replace it with one that was purchased for less money. It is prohibited to steal with the intent to repay the owner (C.M. 348:1). Accordingly, since the hotel intends to make money by selling beverages and has determined that guests will be willing to pay the inflated amount due to the convenience of having cold drinks available in their rooms, it is clear that they would not permit you to take a bottle to drink and replace it with another one, since that prevents them from making their intended profit.
However, if one did not know this halacha and took a bottle of water and replaced it, he has fulfilled his obligation to repay the owner for what he stole (C.M. 354:5). Although one who damages property is not obligated to provide the owner with a new utensil to replace the one he broke, a thief is obligated to either replace the utensil that he stole or pay the owner the value of the stolen object (Shach 354:7, as opposed to Rema, who requires a thief to pay his victim with money rather than replace the stolen object).
Consequently, although the one who drank the water benefited from the drink, as long as he can provide the victim with a replacement of the stolen object, he has fulfilled his obligation. Even though the hotel charges more for the bottle of water than the thief spent on replacing the stolen bottle, he fulfills his obligation as long as he gives them a replacement bottle of water, even though it cost him less.
Money Matters: Selling Intellectual Property
Nonetheless, poskim have validated the sale of IP on the basis of dina d’malchusa and minhag ha’medinah, since the common commercial practice for the past few hundred years has been to sell such rights and franchise licenses. This is true also according to the opinion that there is no actual ownership of IP, only a right to profit from one’s efforts.
Furthermore, if the IP has been affixed to something tangible, such as a book or prototype model, the owner can sell the IP along with the tangible book or model.
However, when selling a future design, it is questionable whether minhag ha’medinah applies to something shelo ba la’olam (Pischei Teshuvah, C.M. 201:1–2).
When selling intellectual property, it is possible to stipulate terms and conditions, as with any other sale (see Emek HaMishpat, Zechuyos Yotzrim, intro. 16:1–5; ch. 14:119). v
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dinad’malchusa to consider in actual cases.
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail email@example.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to firstname.lastname@example.org.