A Project of the Business Halacha Institute
Under the auspices of HaRav Chaim Kohn Shlita
by Rabbi Meir Orlian, Yerushalayim
The commercial district had grown rapidly during the past decade; office buildings and stores lined the streets. Traffic became a nightmare and street parking was almost impossible. Parking lots sharply increased their rates, charging over $20 for a day’s parking.
Nestled among the office buildings stood a lone house, a relic of the residential days of the area. Mr. Spitz refused to move from his home of forty years, and steadfastly refused the many offers for his property. He resented the encroaching commercial development.
In front of the house was a private parking area where Mr. Spitz kept his car. Whenever he was out, people eyed the empty spot enviously. However, Mr. Spitz had no interest in renting his spot.
Mr. Abrams owned the adjacent store and drove in every morning and parked in the nearby parking lot.
As Mr. Abrams was leaving the store one evening, he saw Mr. Spitz lugging suitcases into his car.
“Are you going somewhere?” Mr. Abrams asked.
“Yes,” Mr. Spitz answered with a smile. “One of my grandchildren in Israel is getting married, so we are flying there tonight.”
“Mazal Tov!” Mr. Abrams wished him. “How long will you be there?”
“We’ll be away for a month,” said Mr. Spitz. “My son will meet us at the airport and keep the car until we return.”
The next morning, as Mr. Abrams headed toward the parking lot, he noticed Mr. Spitz’s vacant parking area. A sudden thought came to him.
“Mr. Spitz is away for the month,” Mr. Abrams said to himself. “What’s it to him if I use his spot meanwhile?” He pulled into the spot and parked there. “That’s $25 saved,” he thought.
After parking there for three weeks, he encountered Mr. Spitz’s son one day. “What are you doing on our property?” the son asked.
“I own the adjacent store,” explained Mr. Abrams. “Your father mentioned that he would be away for the month, so I’ve been parking here.”
“Don’t you realize this is private property? You’re trespassing!” the son said. “My father doesn’t want people to get into the habit of using his spot. Do not park here anymore.”
However, the next morning, Mr. Abrams was running very late. He parked in Mr. Spitz’s spot and ran into the store. “I don’t think it’s nice of him not to let me park here,” he rationalized. He continued to park there for the remainder of the week.
When Mr. Spitz returned from Israel, he was angry. He walked into the store and demanded an explanation.
“You were away anyway,” Mr. Abrams responded. “What difference does it make to you?”
“It’s my property, and I don’t have to let anyone else use it.” Mr. Spitz retorted. “You trespassed!” He handed Mr. Abrams a bill that read: “20 days parking @ $25 per day. Total = $500.”
Mr. Abrams looked at the bill. “Even if I was wrong to use the driveway, why should I pay you?” he said. “You had no plans to rent it!”
“Why shouldn’t you pay,” shot back Mr. Spitz. “You benefited from my spot. Otherwise, you would’ve had to pay the parking lot.”
Mr. Abrams was perplexed. He called Rabbi Dayan and explained the situation.
Rabbi Dayan said: “It would have been nice for Mr. Spitz to allow you to park there in his absence, but he is entitled to refuse, and you were wrong to park there without his permission.” (Rama C.M. 363:6)
“What about the bill?” asked Mr. Abrams.
“This is the classical case of zeh neheneh v’zeh lo cha’ser discussed in the Gemara (B.K. 20a),” answered Rabbi Dayan. “You typically paid for parking and gained, but Mr. Spitz had no intention of earning rental, so he lost nothing. The halacha is that although you were wrong to use his property, you are exempt post facto, provided that you didn’t cause any damage or loss.”
“So I don’t owe anything?” asked Mr. Abrams.
“You do owe something,” concluded Rabbi Dayan. “You are obligated to pay for the usage from the time you were explicitly told not to park (C.M. 363:6). Thus, you have to pay for the last week, $125.”
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4 Responses
I don’t understand how this is a case of zeh neheneh v’zeh lo cha’ser, since the pavement of the driveway slowly erodes and the owner needs to repave it once every several years, at the cost of more than $1000.
If you’d divide that cost in weeks, I wouldn’t be surprised if it turned out that the usage of a driveway costs several dollars per week.
One might argue that the cost per usage is insignificant (less than shave pruta), but that is only relevant is a person uses the parking lot once. If you use it for a week or a month, then the loss is definitely more than shave pruta, and you should be required to pay.
Has the author overlooked this nekuda?
Author’s response:
It is doubtful that the parking itself contributes significantly to the erosion of the pavement; it is mostly an issue of time and weather. Even if nobody parked there for the month it would probably need to be repaved after the same amount of time. The imperceptible effect of parking is far less than the “blackening of the walls” mentioned in the Gemara. (BK 20b)
I do not understand how the son’s machoah helps for the father. The father himself would have to notify Mr.
What I don’t understand is this: Mr. Spitz’s son – and I am under the assumption that Mr. Spitz himself thinks the same thing – claimed that the reason he didn’t want anyone to park there is so people wouldn’t get “used to” using the spot when his car is not there. If this is true, isn’t Mr. Abrams chayav because it is a possible chaser of people thinking that they can park there as well. If people see that Mr. Spitz’s car is not parked there but someone else’s is they might think he now allows others to use it and it would be a major inconvinience for him when he wants to park in his own spot.