Simon Jackson
Legal Advisor to Torah Mitzion


The Jerusalem Beit Din Le’Mamonot (Civil Court) heard this case. One of the sources quoted by the Beit Din was a Gemara in Masechet Bava Kamma (81b). There the Gemara quotes a Beraita that states: “Consider the case where Reuven’s crops have been harvested, and yet he does not allow people to enter into his field to take a shortcut. What do people say about him? They say: What benefit does Reuven have from denying us access, and how do others damage him when they cross through his barren field?! Such a person, who withholds a good that costs him nothing, is called a bad individual, as the pasuk in Mishlei states (3:27): Do not withhold good from its rightful recipients, when you have the power to do so.”

The Maharsha cites the earlier ruling of the Gemara (20a) that where a person who does not usually rent lives in another person’s courtyard, without his knowledge, and the courtyard is not for rent, the squatter is certainly exempt from paying rent. He notes, however, that the squatter is only exempt when the owner of the courtyard is unaware of the squatter’s presence. Once the owner becomes aware of his presence he is allowed to evict him. If so, asks Maharsha, why can the farmer be forced to allow people to take shortcuts through his barren fields? He answers that even though this particular courtyard is not for rent, courtyards are commonly rented. Hence the owner is not considered a “bad” person if he merely decides to adopt the prevailing practice. By contrast, allowing passage through barren fields is the prevailing custom and one who contravenes it is guilty of “withholding good” from others.

Commenting on this ruling, the Beit Din noted that the neighbor, Shimon, has rights of ownership, which would thus be violated, such that the principle of “ze nehene, ve’ze lo chaser” (this one [Reuven] benefits – but the other person [Shimon] does not lose out) would not apply – because Shimon is “losing out”! However, based on the above quoted Maharsha, as well as other sources, the following two points emerged: (a) where people normally charge money for a particular service/item – to coerce them to give it for free constitutes a violation of their ownership rights; (b) where people generally regard a particular use without the owner’s permission as an infringement of his ownership rights – it, similarly, cannot be coerced.

It seems clear, concluded the Beit Din, that the majority of people do not regard as an infringement of ownership rights the one-time coercion of a person to allow his neighbor to transfer an object using his premises. To the contrary, most people would regard a person who refused to grant permission without reasonable cause as a bad person, and would characterize his conduct as a classic case of Midat Sedom. Therefore, Shimon can be coerced into granting Reuven the right to transfer his fridge to his house through Shimon’s private property, on the basis of the principle: Kofin Al Midat Sedom.


Is one permitted to act in all circumstances according to the letter of the law when one would otherwise lose out?

In our last column, we saw that everyone agrees that where a ship owner leases his boat to a renter to transport a specified cargo of wine, he is unable to object to allowing the transport of different cargo. In this case, there is no ethical justification for the owner to object to the change in plan, and to insist on the literal fulfilment of the agreement would be the epitome of Midat Sedom – pure and unadulterated wickedness.

However, what happens if a person hires a ship to transport a specified cargo and the person then wishes to transport other cargo in its place, because the first cargo is now lost. Can the ship owner absolve himself of the need to rent out the boat (in reliance of the technical reality that the original cargo, which formed the subject of the original agreement, is no longer in existence)? Or would such conduct also be regarded by the Halacha as Midat Sedom?

The Poskim are divided on the question of precisely those circumstances in which a person is allowed to insist on the literal fulfilment of a contract and when such fulfilment will be regarded as having been made in bad faith.

The author of the work Seifer Meirat Einayim (the Sema), Rabbi Yehoshua Falk Catz, one of the earliest commentaries on the Shulchan Aruch in Poland in the 16th century, on Choshen Mishpat 311:2, writes that once the wine which formed the subject of the original agreement has been lost, the owner is now able to avail himself of a literal interpretation of the agreement, because the cargo is no longer in existence. Consequently, he should not be regarded as behaving in a spiteful, albeit legally correct, manner (Midat Sedom), for he is not acting out of pure wickedness (rishut). While it is true that the owner appears to be exploiting the renter’s position, which in turn appears to be an act of bad faith and ethically defective, this does not entitle the renter to any legal remedy against the owner, because he was not responsible for the loss of the wine.

According to the Sema, then, Midat Sedom is wickedness for its own sake: taking advantage of a formal legal right in one’s favor, when there is no benefit to the person, only the prevention of benefit to his neighbor. Therefore, when there is a benefit to the person, even if that benefit is not justified from the ethical standpoint, the person is still allowed to take advantage of it.

The Shach, Rabbi Shabtai HaCohen (17th century Lithuanian commentator on the Shulchan Aruch), adopts a stricter position, closer to the concept of “good faith” (tom lev) in modern Israeli law. While it is true, the Shach argues, that the ship owner, formally speaking, has a good technical claim against the renter, he also needs to have an ethical justification to enable him to rely on this claim. Only then will he be regarded as if he has not acted according to Midat Sedom when insisting on the literal fulfilment of the agreement.

An example of this, the Shach writes, would be if he had agreed to provide an unspecified boat to transport a particular cargo of wine and the boat then capsized, along with all the cargo. The owner would then be justified in his decision to interpret the agreement in a literal manner and to avoid the need to provide the renter with an alternative boat to deliver different wine, because he too sustained damage, when his own boat was also lost at sea.

According to the Shach, then, in contrast to the Sema’s more lenient position, the mere fact that one person enjoys a certain benefit is not sufficient to prevent his conduct from constituting Midat Sedom. The benefit to him must also be justified from the ethical point of view.