Shabbat Parashat Shoftim | 5769
P’ninat Mishpat: (Zeh Neheneh V’zeh Lo Chasser) This One Benefits and This One Does Not
(based on Eit Ladun, Halacha Psuka, vol. 58, by Rav Akiva Kahane)
Sometimes, one has to pay for services that he did not agree to pay for. We will view the topic of zeh neheneh v’zeh lo chasser (=znvzlch) in relation to the following case. A company designed the facade of someone’s house and then used a picture of it in their advertisement, for which the homeowner demands compensation.
The gemara (Bava Kama 20-21) discusses one who lived in his friend’s home without permission, thereby saving rent, where the homeowner did not lose because it was not slated for rental. The Shulchan Aruch (Choshen Mishpat 363:6) rules that until the owner tells the squatter to leave, the latter is exempt from rent because in a case of znvzlch, one is not obligated to pay.
The Pnei Yehoshua explains that we entertain the possibility of payment because the benefit one receives from another innately obligates the recipient. Yet, znvzlch is exempt because we do not allow the giver to accept payment, which would be along the lines of the “attribute of Sodom,” who refused to do favors. The Chidushei Harim says that while benefit can obligate, in the case of znvzlch the benefit does not come directly from the provider to the recipient. For example we do not obligate someone to pay for seeing something enjoyable in his neighbor’s yard. One does not have ownership over every type of use of his object. A major factor that determines over what he has ownership is when another’s use causes the owner a loss. The difference between the explanations is when there is a loss, so Sodom does not apply, yet the benefit is not sufficiently related to the owner.
What is considered a loss to the owner? Tannaim argue about a case where a renter lends a cow to a borrower, by whom it dies without fault. Rabbanan say that since renters are exempt and borrowers are obligated, the borrower pays the renter. However, we accept R. Yossi’s opinion: “how can one do commerce with another’s cow?” The Chidushei Harim asks why the owner can complain about the renter’s receiving payment, as it seems to be like a case of znvzlch. He answers that an animal owner can object to the renter’s giving the cow to another who might keep the animal for himself, making the whole situation one of slight loss. Similarly, the homeowner in our question can say that public exposure of his home could increase the chance of robbery.
Rav Shimon Shkop answers the above question by saying that a monetary obligation that emanates from one’s property, i.e., the compensation for the cow’s death, naturally belongs to the owner. While this applies to R. Yossi’s case, in the case of the advertisement, no money emanates from the house. Rather, there is a benefit that tangentially relates to the house, for which there is not a natural right of the homeowner. Therefore, the legal validity of the owner’s demand would depend on whether we accept the Chidushei Harim’s or Rav Shimon Shkop’s explanation.
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