Print this Article
HaRav Yishai Natan –
I live in Brooklyn, and my wife wanted to go away for the weekend to Toms River, New Jersey. I told her that my uncle has a nice house in Toms River that he rents out as an Airbnb. He had recently given it to my brother for free for an extended weekend, I’m sure he’ll let us do the same. I called my uncle and asked him if the house was rented out that weekend, and if not, whether it would be okay for us to stay there. He told me that it didn’t look like anyone was taking it that weekend and that for sure I could have it.
We went and had a great time. Then, after Shabbat, he emailed me an invoice for $2,000 for using the house. I called my father to ask if my uncle was serious, and he told me that, knowing his brother, he probably is. I don’t understand, though. I assumed it was free, just like when he gave it to my brother. If he was planning on charging me, he should have said something.
Do I have to pay for something that I assumed to be free?
The Terumat HaDeshen (siman 317) discusses a similar case. A father-in-law agreed to support his son-in-law for a set amount of time. After that period ended, he continued providing support. Later, the father-in-law demanded payment for the additional time.
He writes that it would seem that the son-in-law should be patur from paying. He assumed the support was given for free, especially since another son-in-law had received similar support without being charged. Nevertheless, the Terumat HaDeshen rules that payment is required, because at the end of the day he clearly benefited from the extra support.
The gemara calls this case zeh neheneh v’zeh haser—where one person benefits from another’s property and the owner incurs even a small loss, payment is required. Your uncle also incurred a loss by paying for cleaning after you left. Even though in the gemara’s case the benefit was taken without permission, and here the support was requested and given, the halacha remains the same and payment is required. The point is that the recipient benefited, and it was not definite that the giver intended the support to be free. The claim that the extra support was obviously intended to be free since he did the same with his other son-in-law was rejected, since an owner can treat people differently if he chooses. The Rama brings down this halacha (Shulhan Aruch, HM 246:17).
In contrast, the Tashbatz (1:174) rules that if someone allows another to live in his home, he cannot later demand payment, since such permission is usually assumed to be given for free. The Rama also brings this ruling (HM 363:10).
Many poskim understand these rulings as a mahloket and in turn would be a contradiction in the Rama, and would apply the rule of hamotzi mehavero alav hara’aya – payment cannot be forced without proof, and you would be patur from paying. Others explain that there is no mahloket or contradiction: the Tashbatz was referring to a house that is not usually rented, while the Terumat HaDeshen applies to things people typically charge for. According to this opinion, you would be hayav to pay.
Marandoes not explicitly say what the halacha is in the Shulhan Aruch. However, in Bet Yosef (HM 363), he brings the Tashbatz, and in Bet Yosef (YD 128) he brings the Teshuvat HaRif, which says that one who supports orphans without stipulating payment cannot later demand to be paid. Maran does write this halacha in Shulhan Aruch (YD 253:5), so you would be patur.
However, in Shulhan Aruch (HM 290:25), Maran holds like the Rashba in a similar case and obligates payment, just like the Terumat HaDeshen. The Rama tries to reconcile the contradiction by Maran and explains that one is patur only when it is clear the act was done as gemilut hasadim.
In your case, while it is possible that Maran would say you are hayav to pay, especially since it is not clear that it was meant to be for free, however, since his position is not definitive, the matter remains as a safek. Therefore, the rule of hamotzi mehavero alav hara’aya applies. You would not be hayav to pay.