I am asked regularly if Halachah permits one to move to unoccupied, better (and far more expensive) seats at a ball game when, well into the ballgame, it is clear that no one will be sitting in those seats for the duration of the game. Some argue that a celebrated discussion in the Gemara (Bava Kama 20a) indicates that it is permissible to do so. Upon investigation, though, it is clear that this is not the case.
Bava Kama 20a
This Gemara discusses the obligations of one who resided in another’s property without the owner’s permission. The Gemara presents three variations of this situation. One extreme case is when the property was not available for rent and the squatter would not normally pay for a place to reside. In this case, it is clear that the squatter is not required to compensate the owner, since the squatter did not benefit (i.e. save money from not having to pay rent) and the owner of the property did not lose (i.e. was not deprived of generating income from renting out the property).
The other extreme is a case in which the property was normally rented out, the squatter deprived the property owner from the opportunity to rent out the property, and the squatter normally would pay for a place to live. In such a case, it is obvious, states the Gemara, that the squatter must reimburse the property owner, since the squatter benefitted and the owner sustained a loss due to the squatter’s presence in the property.
The more moderate situation is the one that is subject to considerable discussion in the Gemara. This situation is one in which the squatter would normally pay for a place to live, but the owner would not normally rent out the premises occupied by the squatter. In such a case, the squatter has benefitted but the owner has not sustained a loss. This is referred to in the Gemara as “Zeh Neheneh VeZeh Lo Chaseir,” “this one benefits and the other does not lose.” The Halachah (Shulchan Aruch Choshen Mishpat 363:6) follows the opinion of Rabi Yochanan that the squatter is not required to pay the owner in such a situation, since the latter did not sustain a loss in such a case.
Kofin Al Middat Sedom
There are a variety of explanations offered for Rabi Yochanan’s view. A popular explanation is that of the Penei Yehoshua (Bava Kama 20a), who writes that it is an example of “Kofin Al Midat Sedom,” Beit Din coercing people to not be overly particular about their property. Rashi (Bava Batra 12b s.v. Al Middat Sedom), Tosafot (ad. loc. s.v. Kegon), and the Rambam (Hilchot Shecheinim 7:8) support this view.
The Mishnah (Avot 5:10) condemns individuals who act in the manner of Sedom and claim, “what is mine is mine and what is yours is yours.” Thus, one should not demand payment for gas and tolls from someone who has asked you to ride home in your automobile if he did not take you out of your way. Despite the fact that the rider has saved money from having to pay transportation costs, it is nonetheless Somodite behavior to demand payment when the driver has lost nothing. Indeed, the Ri (presented in Tosafot ad. loc.) implies that the rule of Kofin Al Middat Sedom is a Torah-level law and not merely a rabbinic enactment.
A classic case of Kofin Al Middat Sedom is the Gemara (Bava Batra 12b), which discusses a case in which brothers divide fields they inherited, and one of them owns a field adjacent to an inheritance field. Rabbah rules that we apply the rule of Kofin Al Middat Sedom, and we accommodate the brother in a case in which the objectors have no good reason not to.
In a modern application of this principle, an Israeli Beit Din (Shurat HaDin, volume two, pages 323-333) adjudicated a case during which Reuven awaited a refrigerator delivery, which could be done only through Shimon’s balcony. Shimon objected, without providing a good reason, and demanded that Reuven pay. The Beit Din ruled that Shimon should be forced to do the favor for free.
Thus, one could reason that one may sit in unoccupied seats at a ball game. Although one benefits from sitting in better seats, the stadium owners are not deprived of an income when people sit in unoccupied seats for the latter portion of a ball game. In such a situation, one could suggest, we are entitled to coerce the stadium ownership to refrain from engaging in Sodomite behavior.
Rav Hershel Schachter – Prohibits Moving Seats at a Ball Game
Nonetheless, it is clear that it is forbidden to move to the empty seats at a ball game. Tosafot (ad. loc.) state explicitly that the property owner enjoys the right to keep people from squatting on their property. Although some Rishonim disagree, the Encyclopedia Talmudit (12:5) notes that the majority of Rishonim reject this view. Indeed, Rama rules in accordance with Tosafot.
However, one could respond that Rama explains this ruling that we apply the concept of Kofin Al Middat Sedom regarding only cases in which the owner does not have potential to derive benefit. Rama explains that just because the property owner chooses not to rent out a particular piece of property, a squatter is not entitled to demand free access to that property. Accordingly, since the stadium, in most circumstances, is highly unlikely to sell tickets at the later stages of a game, a squatter should be entitled to demand free access to empty seats.
However, Pitchei Teshuvah (ad. loc. number three) notes that the consensus opinion applies Tosafot’s assertion that we cannot coerce a property owner to allow others to remain on his property without paying a fee in all cases. Indeed, Rav Herschel Schachter told me that the rule of “Zeh Neheneh VeZeh Lo Chaseir” is only a question of BeDiAvad, once the event occurred. However, he rules that LeChatchilah (initially), it is forbidden to reside on another’s property without permission. Indeed, the Gemara frames the issue as a question of whether after the fact the squatter must pay the property owner. The Gemara does not record an opinion that the squatter is entitled to demand the right to live in an area rent free if that spot is not rented out. Accordingly, Rav Schachter told me that it is forbidden to move into unoccupied seats at a ball game.
Similarly, Rav Schachter told me that a community is forbidden to affix a Lechi (a portion of an Eiruv) to another’s property without permission even if there are no negative consequences to the property owner. Along the same lines, I heard Rav Soloveitchik instruct community rabbis not to install any portion of an Eiruv without permission.
Three Additional Reasons to Forbid Moving Seats
Moreover, the principle of Kofin Al Middat Sedom applies only to matters of serious need, such as a place to reside, as indicated from the cases discussed in the Gemara. The need for someone in a place of entertainment to move to a seat he did not pay for in order to increase the quality of the entertainment does not seem like an appropriate reason to coerce a property owner to allow another to sit in a seat without making payment.
Furthermore, stadium owners have every reason to object to people randomly moving seats. There is a need to instill a sense of order and discipline at a stadium, and allowing people to move about, each according to what is appropriate in his eyes, creates a sense of pandemonium. A sense of order is certainly necessary in these circumstances, since alcohol is served at such events, and the potential for disorder is great. Therefore, it is entirely reasonable for stadium owners to enforce discipline by objecting to fans moving seats without permission. Could one imagine airplane passengers randomly moving into unoccupied seats in the business class or first class sections of an airplane? Such behavior is simply unheard of and understandably not tolerated by airlines.
Finally, the concept of Kofin Al Middat Sedom seems to apply only in regards to behavior of Jews towards other Jews. It does not seem that one may coerce a Nochri to abide by this principle. Even if the stadium owner is Jewish, civil law should govern since it is unimaginable that Halachah would require one law to apply for Nochri customers and another standard for Jewish patrons.
An Exception – Mechilah
An exception to the rule would be in a stadium in which it is clear that its owners do not mind fans moving into better seats at later stages in a game. This might occur at sparsely attended games, such as those of a losing team, bad weather, or a minor league game. The Shulchan Aruch (C.M. 359:1) permits one to take an item that most people do not mind being taken. Even in such a case, the Shulchan Aruch states that pious people should refrain from such behavior.
In today’s major league parks, where very high prices are charged for seats that are closer to the field, owners almost always do not want people to move into seats for which they did not pay. One cannot extrapolate from the more relaxed attitudes of major league ball park owners of thirty years ago when player salaries and seat prices were a tiny fraction of current levels.
It is common today for observant Jews to attend ball games and to openly display their identities, wearing Kippot and modest dress, at the games. Since it is very noticeable when someone has moved to seats for which he did not pay, the potential for creating a Chillul Hashem is great. Moving seats is generally regarded as unrefined behavior, and thus one should avoid doing so unless the owners of that stadium have a clear custom of permitting fans to move to better seats at an advanced point in the game. It is certainly reprehensible to bribe an usher to gain access to better seats. Our mission to act as a “holy nation” (Shemot 19:6) compels us to act in the most upright manner, especially at times when we are in close contact with Nochrim.