Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

Back to Article List 

2 - Kofin Al Midat Sedom – When will the courts intervene? (Part 1)

Kofin Al Midat Sedom- When will the courts intervene to prevent a person behaving in a spiteful, albeit legally correct, manner? (Part I)

What will and what will not constitute Midat Sedom? According to the Rambam in Hilchot Shecheinim (7:8):

“If I approach my neighbor with a request that he allow me to build up the walls of my house, promising him that I will restore the light that he previously enjoyed, my neighbor can refuse my request on the grounds that by making new windows the foundations of the entire wall will be weakened and damaged in the process.” Moreover, “even if I promise to destroy the entire wall and build a new wall in its place and place windows from the outset above the wall of my house, and even pay to relocate my neighbor while the building is taking place - my neighbor can prevent me doing this and argue: I don’t want to go through the bother of moving from place to place.

However, rights - even those to which a person is legally entitled - must not be abused, concludes the Rambam. “Therefore, if my neighbor incurs no additional bother, and does not need to move out, he is unable to prevent me extending my wall, and the Beit Din will compel him to agree to my request (kofin al midat sedom), because while I am indeed benefiting from my act, he is not losing out (ze nehene ve’ze lo chaser).”

“As he has done - so shall be done to him” (Ovadiah 1:15)

The great 16th century Salonikan Halachist, R. Shmuel ben Moshe de Medina (the Maharshdam),discusses a case (CM 311:2) of a person who rented out his apartment for a specific period - in other words, the rental terminated automatically on a pre-arranged date without any need for the landlord to remind the tenant to vacate the property at the appointed time. In the case, the landlord saw the tenant getting the house ready for the winter in the hope that the contract would be renewed, and said nothing to the tenant of his intention not to renew the contract. The tenant understood from the landlord’s actions that he was interested in extending the rental contract, whereupon he asked him for permission to continue to live in the apartment. The landlord refused.

Here, the landlord’s conduct can hardly be characterized as Midat Sedom in view of the fact that the landlord has sustained a loss, i.e. his right of ownership has been violated, and he is effectively being forced to renew the contract against his will. However, the Maharshdam does not hesitate to call the landlord a “rasha” and rules in favor of the tenant. This is because the landlord’s silence constituted a quasi-agreement to renew the rental contract, and he is not therefore able to evict the tenant from the house. “As he acted - so shall be done to him; his unscrupulous deed will rebound upon his head.” This is a far-reaching judgment, which imposes on the landlord a certain outcome against his will on account of unbefitting conduct by him.

Justifiable eviction, without notice, of a tenant who has acted in bad faith

Maharshdam bases his judgment on the Talmudic precedent (Bava Metzia 101b) of the man who bought a boatload of wine but could not find a place to store it, whereupon he asked a certain woman whether she had a place to rent to him for the storage of his wine. When the woman refused, he betrothed her, as a result of which the woman rented to him a place to bring in the wine. The man then immediately wrote a bill of divorce and sent it to her, whereupon she - on realizing that the betrothal had not been made in good faith - went and hired porters paying them from the wine itself. She then removed the wine and placed it on the path outside without informing her ex-fiancé, in breach of Chazal’s enactment requiring notice of the termination of a rental. The man sued the woman in the Beit Din, claiming that the eviction was illegal, but Rav Huna the son of Rav Yehoshua justified the woman’s act - “for this woman can say to the man: you appeared to me like a lion in ambush (since you betrothed me only to obtain the rental).”

In the case adjudicated upon by the Maharshdam, the fiancé, too, has been caused a loss, viz. the loss of the storage space for his wine barrels. Nonetheless, because he did not act in good faith towards the woman his unscrupulous act is allowed to rebound on him…

When is a person entitled to insist on the literal fulfilment of a contract?

The requirement of “good faith” in the legal sphere seems very woolly and undefined. Its main purpose is to ensure that commercial life is conducted honestly, justly and with integrity. In the usual course of events, the parties to a contract do not consider every detail of a contract and the manner of its performance. The principle of good faith prevents the abuse of this reality by one party’s attempting to fulfil the contract in a manner which is not compatible with the spirit of the contract and with the reasonable expectations that arise from it, and is intended to give expression to the spirit of the transaction and its internal logic, precisely as we saw in the case of the renter of the mill at the end of our last column.

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.

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 thus be the epitome of Midat Sedom - pure and unadulterated wickedness.

In a similar vein, section 17 of Israel’s Hire and Loan Law, 5731-1971, stipulates that “the renter shall enable the hirer at any reasonable time to inspect the object hired.” This provision is compatible with the position of Jewish Law, according to which, when the renter is not caused any damage by the hirer’s/landlord’s examination of the property, to refuse to allow the landlord entry would constitute Midat Sedom.

Moreover, the landlord is not allowed to object to a sub-rental of his premises when he is caused no damage by this. This applies even when the members of the sub-tenant’s family are more numerous (and therefore liable to cause more damage to the property) than the original renter, because at the end of the day, by virtue of the contract and/or local custom, the landlord will receive his house back in exactly the same condition as it was before he rented it! To object, therefore, to a sub-rental in these circumstances would be nothing other than Midat Sedom [1] .

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 because of the technicality 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?

To be continued in next column!



[1] Kesef Hakodashim, 19th century Galician Posek, quoted on p. 511 of the exhaustive and illuminating work on the subject of “Hire and Loan,” by Dr. M. Wygoda, in the series (Hebrew) “Jewish Law for Israel.”

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

Viewed:
4532 times

Category: 

Jewish Law in our Times > Good Faith and Midat Sedom

Entered By:

moshe, 10/15/2006 9:01:50 PM
Admin: