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 Shabbat Parashat Chukat| 5767P'ninat MishpatSeizure of Collateral for the Payment of Damage by Gerama - Based on Halacha Psuka - vol. 9 - A Condensation of a Psak by the Piskei Din of the Rabbinate of Yerushalayim - vol. II - pp. 63-70
Case: The plaintiff rented an apartment from the defendant. In order to cover himself in the case of damages, the defendant took jewelry from the plaintiff as collateral. During the time of the rental, the apartment was damaged by moisture that seeped in, which was not attended to in a timely fashion by the plaintiff/renter. The defendant/landlord is withholding the jewelry until the plaintiff pays for the damages to the apartment. The plaintiff demands his jewelry back, claiming that the damages were caused only by gerama (indirect damage), for which he is not obligated to pay.
Ruling: The first thing to determine is the halachic category to which not taking care of the seepage belongs. Beit din determined that the plaintiff is correct that it was an example of gerama. As a result, the plaintiff is indeed not obligated to pay for the damages to the apartment. However, in such a case of gerama, there is classically a chiyuv latzeit y’dei shamayim, in other words, some level of moral obligation to pay, which is short of a full obligation.
The question is whether the fact that the landlord had control of collateral, which can serve as payment for the gerama damages, makes a difference. The Rivash (392), and, in his footsteps, the Maharshal (Yam Shel Shlomo, Bava Kamma 6:6) and the Shach (Choshen Mishpat 28:2), say that even if one who is “owed” money latzeit y’dei shamayim grabs property as payment, we extract the property and he need not pay. However, Rabbi Akiva Eiger (notes, ad loc.) says that the matter is the subject of a machloket among the Rishonim. He leaves it as an unresolved question whether the person who has obtained control of the other’s property under these circumstances can be forced to relinquish control with the claim of kim li (“I am confident that the minority opinion is correct and cannot be forced to give over money or property”).
However, beit din posits that in a case of gerama there is a chiyuv latzeit y’dei shamayim only if the damager caused the damages on purpose. However, in this case, the plaintiff/renter’s responsibility for the damages was accidental. Therefore, his control over the jewelry is irrelevant according to all opinions. He must, therefore, return the jewelry and is not halachically entitled to any payment. However, based on the concept of p’shara (compromise) that the sides agreed to, the plaintiff/renter will have to pay for a small percentage of the damages.
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