By Rabbi Meir Orlian
The Shapiros owned an apartment in Yerushalayim, where they often spent the yamim tovim. Their neighbors, the Landaus, were traveling there for the Yamim Nora’im. “Would you be willing to rent us your apartment for Rosh Hashanah?” asked Mr. Landau.
“How long will you be there?” asked Mr. Shapiro. “We plan to come shortly after Yom Kippur.”
“About a week, just until Tzom Gedaliah,” said Mr. Landau. “Afterward we expect to stay with relatives.”
“In that case we’d be happy to rent you the apartment,” said Mr. Shapiro. “Just please leave it clean; we don’t have someone managing the apartment to clean up afterward.”
“For sure; will do,” said Mr. Landau.
They agreed on a price for the week. “I assume this includes all utilities,” said Mr. Landau.
“Of course,” replied Mr. Shapiro.
Mr. Landau took out his checkbook. “Let me pay you now, since I don’t know when I’ll see you next,” he said.
“That would be a good idea,” said Mr. Shapiro. “Thank you.”
The Landaus spent Rosh Hashanah in the apartment and then went on to their relatives.
When the Shapiros arrived a week later, they saw that the air conditioners were running.
“What’s going on?” asked Mrs. Shapiro. “Why are the air conditioners running?”
Mr. Shapiro checked the Shabbos clock. The mechanism was on the “timer” setting, operating for about half the day.
“It seems that the Landaus didn’t shut the air conditioner when they left,” said Mr. Shapiro. “That’s about a week’s worth of running half-time–a few hundred shekels!”
Mr. Shapiro e-mailed Mr. Landau. “I guess the timer was off when we left,” replied Mr. Landau. “We didn’t realize that the air conditioner was still on.”
“This is an interesting question,” said Mr. Shapiro. He called Rabbi Dayan and asked: “Is Mr. Shapiro liable for the excess electricity?”
“Mr. Shapiro is certainly liable for the electricity after leaving the apartment,” said Rabbi Dayan. “In some cases, he could be liable for excess electricity even during the rental period if he was wantonly negligent.”
“Could you please explain?” asked Mr. Shapiro.
“A renter is required to use the rental item in the customary manner,” explained Rabbi Dayan. “For example, he may not overload an animal, and if he did so and harmed the animal he is liable (C.M. 308:6). Rabi Akiva Eiger (C.M. 309:1) explains that misuse is worse than regular neglect; it is like a stipulation that if the renter misuses he is liable for the damage” (Pischei Choshen, Sechirus 2:10).
“Similarly, a renter is expected to use electricity in the customary manner,” continued Rabbi Dayan. “Usually when one leaves his house for the day he shuts the air-conditioning. Although some people leave the air-conditioning on even when they’re away so that the house won’t heat up, depending on the locale and time of year, they would still shut the air conditioner when leaving for an extended time.”
“Wouldn’t this be considered grama (indirect, passive damage), though?” asked Shapiro. “Mr. Landau was allowed to use the A/C and he simply didn’t shut it. One is legally exempt for grama.”
“This is not considered grama,” said Rabbi Dayan. “As a renter, Mr. Landau was responsible to look after the apartment; it was his obligation to shut the A/C before leaving” (see Ohr Ezra, vol. I, pp. 16—17).
“Moreover, unauthorized use of electricity is more than damage,” continued Rabbi Dayan. “A person who turns on an electrical appliance is essentially buying electricity from the electric company on credit, until the bill comes. When renting an apartment including utilities, the owner is willing to cover the usage during the rental period, like someone who allows another to use his credit card for a limited time. Beyond this time, the tenant is required to pay for the electricity that he purchased.”
From The BHI Hotline: Annulled Rental Agreement
Q. In anticipation of an overseas trip I rented a cellphone. When we landed I turned on the phone but it did not work. I brought it to the local agent, and after attempting to activate it he admitted that the phone would not work and agreed to refund my money. A friend suggested that I purchase a SIM card in the airport to activate the phone. I purchased the SIM card and indeed the phone worked.
Upon my return I intended to return the phone and receive my refund. However, I wondered whether I am obligated to pay for use of the phone. On the one hand, I should pay since I used the phone, but on the other hand, the original agreement between us was nullified, and since he couldn’t have used the phone anyway until I returned, I should not have to pay for using it (zeh neheneh v’zeh lo chaser). Am I obligated to pay for use of the phone or not?
A. The first point to consider is whether you were permitted to use the phone. Seemingly, once a rental agreement is nullified it is prohibited to use the rented object without permission since borrowing something without permission is theft (sho’el shelo mida’as–gazlan; C.M. 292:1, 363:5). Although a squatter on another person’s land is not obligated to pay rent for use of the land (zeh neheneh; C.M. 363:6) and may do so even l’chat’chila in many instances (see Chasam Sofer, C.M. 79; Nesivos 146:9, 250:16), nevertheless, when it is assumed that the owner would not allow someone to use his land or movable objects that might become damaged during use, it is prohibited to use it/them without permission.
Whether one who used a friend’s possession without permission is obligated to pay for the use depends on whether he used land or a movable object. Halachically, when movable objects are stolen, they become the thief’s possession. A thief’s obligation is to return the stolen object and reimburse the owner for any depreciation/damage he caused. Since the thief acquired possession of the object, the Torah does not obligate him to pay for use.
On the other hand, real estate cannot be stolen and always remains the owner’s. Therefore, when use caused the owner a loss, it is not subject to the halacha of zeh neheneh mentioned above; the squatter must pay the owner the full value of the use of his land (C.M. 363:5; Rashba, B.K. 20b, cited by Shaar HaMelech, Gezeilah 3:9; Yam Shel Shlomo, B.K. 9:10; Cf. Tosafos 30b, d.h. Lo tzrichah).
The above is true when one intends to steal the object or borrow it without permission, which is also considered theft. If the owner regularly leases his object and the user intends to lease it, albeit without obtaining permission, the owner may either collect his standard rental fee or the cost of the depreciation (C.M. 363:5).
Regarding your inquiry, when you decided to use the phone you did not intend to pay for it and thus you are a sho’el shelo mida’as–borrower without permission, who is categorized as a thief. This is based on the presumption that the owner would not allow you to borrow the phone without paying for it, since phones are movable objects and may incur damage. Therefore, as a thief, you are not obligated to pay any more than the depreciation of value that your use caused.
When faced with this situation, one should commit to pay the owner for the rental of his phone, obviously by negotiating a discount due to the fact that it was necessary to purchase a SIM card.
Money Matters:
Unusable Rental
Based on the writings of Rav Chaim Kohn, shlita
Q. I rented a van for the day to move some furniture. Because of police activity, the street where I parked was cordoned off the entire day. Must I pay the rental fee?
A. When the rental item is unusable due to external oness, Chazal established (B.M. 77a) that if the misfortune is attributed to the renter he must pay, whereas if it is attributed to the owner he loses the fee (C.M. 310:1).
Sma (301:2) explains that if the misfortune occurred en route during the use it is attributed to the renter, since the misfortune would not have occurred had the item remained home with the owner. Nesivos (310:2) explains that if the item itself was afflicted and rendered unusable or will never return, it is the misfortune of the owner; whereas if the item remains intact and will return, even though the renter was restrained from its use, it is considered the renter’s misfortune. Thus, according to both explanations you are liable (Pischei Choshen, Sechirus 3:3). v
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’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 ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to subscribe@businesshalacha.com.
