For the fifteenth consecutive year, Torah Academy of Bergen County conducted a well-attended post-finals learning program led by this author. While we focused on a Sefer of Tanach in previous years, this past year we decided to focus on practical Halachic issues. One of the days was devoted to delving into decisions issued by the Beth Din of America (BDA) resolving financial disputes between parties. We share our thoughts on the ruling issued regarding a dispute between roommates that we shared with our readers last week in Kol Torah.
The students commented that the BDA’s decision was intelligent, well-crafted and nuanced. We proceed to note the specific aspects of the decision that caught their attention. In our previous issue we focused our analysis on the procedural aspects of the case, while in this week’s issue we will address the substance of the decision.
Although the sum of money involved in the issue is relatively small, there are quite a number of issues in need of resolution. The primary concern is whether the young man who did not move in is liable for the rent from December 2009 through June 2010 when another roommate was finally found. However, two other issues were involved -- the dispute about whether the December rent was paid and the question as to whether the absentee roommate should pay his share of utilities, since he did not live in the apartment and add to the utility bill.
Balancing Pure Halacha and Minhag HaMedinah in the Decision
Pure Halacha is fairly clear about matter under dispute. The Shulchan Aruch (Choshen Mishpat 316:2) states:
If two people rented a house in partnership to share a residence, one cannot substitute another family of renters even if the substitutes are fewer in number. The other party is entitled to claim that they are comfortable sharing a home with the original partner but are not comfortable with the substitute.
Although the Rema notes that there are those who disagree with this approach, the Aruch HaShulchan (C.M. 316:3,9) rules in full accordance with the Shulchan Aruch.
The Be’er HaGolah presents the Tur’s citation of the Teshuvot HaRosh as the source for this ruling. The Teshuvot HaRosh reasons:
People are uncomfortable accepting just any family to share a home. Some find certain families to be too prominent for them, others too undignified, and others too contentious and may not trust the substitute family.
This ruling was issued at a time when the level of Halachic observance was relatively homogenous so a difference in levels of observance was not presented as a reason to reject a substitute. However, in our times this may certainly be added to the list of concerns people may raise about potential housemates.
The Minhag HaMedinah (common commercial practice), however, considerably differs from Halacha. The Minhag HaMedinah is to tolerate a substitute roommate. The individual who decided not to move in is not held responsible for his share of the rent after a reasonable time has passed to create an opportunity to find a substitute renter.
A Potential Resolution to the Contradiction
One could distinguish, though, between the situations and argue that there is no tension between the Shulchan Aruch and the current common commercial practice. The Shulchan Aruch addresses a situation of families sharing the same house.. The current common practice to readily find a substitute is in regard to single individuals sharing an apartment. The Shulchan Aruch’s situation is a much more challenging and invasive one, thus lending itself for people to be far more particular regarding the choice of their house mates than a situation with single apartment mates.
Moreover, since the dispute occurred in a community where hundreds of relatively religiously homogenous Modern Orthodox singles reside and apartments are not always simple to find, such as the Washington Heights section of New York City, a reasonably acceptable substitute should have been relatively easy to find. Thus, one could argue that the Shulchan Aruch’s codification of the Teshuvot HaRosh’s ruling is entirely irrelevant to the ruling. One could have potentially ruled that the remaining roommates were too particular about the substitute and should have found a replacement roommate much earlier than he did and absolve the roommate who backed out from any payment.
The Dayan’s Approach to Resolving the Dispute
The Dayan who sat on the situation decided, however, to blend the Teshuvot HaRosh with the current Minhag HaMedinah. He rules that the Halachic right to decline roommates applies fundamentally applies even in the current situation. Thus, the Dayan utilizes Minhag HaMedinah only to discount the rent obligation by a third as an equity consideration. Had he viewed the Minhag HaMedinah as primary he would have obligated the renter who backed out to pay only a third of the rent as a nod to the ruling of the Teshuvot HaRosh and Shulchan Aruch.
Additionally, the Dayan very wisely marshaled the Minhag HaMedinah to excuse the renter who backed out from both utilities and the rent payment for the months of April and May. This is certainly most appropriate considering that one could argue that the ruling of the Shulchan Aruch does not apply in the current milieu.
The Disputed December Rent
Regarding the disputed payment of the December rent, the Dayan writes that “Defendant’s assertions that he paid in full for this period are credible.” The Dayan, however, is not clear why he arrived at this conclusion. Moreover, he concludes that “Plaintiff’s claim is subject to the rule of Hamotzi MeiChaveiro Alav HaRa’ayah (the burden of proof is on the claimant), the burden of which was not met”.
The reader is left wondering as to whether the issue of the payment of the December rent was explored to the fullest extent within reason. In today’s day and age, with transactions and exchanges having electronic records (except, of course, for cash payment), it would seem reasonable for the Beit Din to demand from one who claims he paid a debt to present evidence such as a record of a canceled check. It would seem that the rule of Hamotzi MeiChaveiro Alav HaRa’ayah applies only to a situation where there is no viable option exists to verify a financial dispute. I presume that the Dayan either conducted such an investigation during the Din Torah (hearing) or he reasoned that it was the responsibility of the claimant to issue a demand to see evidence of payment and the claimant failed to do so.
Although it is a very brief responsum, the Dayan’s discussion of this issue is informative, educational and stirs interest to further explore the issues involved. Most importantly, this measured decision instills confidence that contemporary Rabbanim continue to effectively grapple with the financial dilemmas that arise today. We are thankful to Hashem that He provides us with capable Dayanim who are able to issue highly intelligent and sophisticated resolutions to the financial disputes of our time.
 Minhag HaMedinah is taken into account by Halacha because it sheds light on the mindset of the parties at the time of the agreement. The Halacha assumes that unless stipulated otherwise, the parties entered their agreement with the presumption that the normal commercial practices of their community would be followed. Accordingly, the Minhag HaMedinah must incorporate the Minhag of the Modern Orthodox community, as the litigants discussed in this case appear to have been. Modern Orthodox Jews enter, as would be expected, into a renter’s agreement based on the normal practices of the Modern Orthodox community in this regard.
 Interestingly, the Dayan in this case cites civil judicial decisions as part of his decision. At first this seems to contradict the Sema (369:21) who cites the Teshuvot HaRashba that Dina D’Malchuta Dina (the requirement to respect the local civil law) applies only to the edicts and decisions of the rulers but not of the courts. However, one could argue that in the United States the judiciary is part of the legislative process. More to the point, though, is that the civil judicial rulings are cited by the Dayan simply to corroborate and clarify the Minhag Hamedinah.
 In fact, the most widely recognized and accepted contemporary Halachic work, the Pitchei Choshen (Hilchot Sechirut 4:10), presents the Shulchan Aruch’s codification of the Teshuvot HaRosh as Halacha without dissent. Presumably, the Dayan in our case is following in the path of the most prominent contemporary authority on this topic. There are many reasons for doing so, including the desire to provide some predictability for Beit Din’s rulings, as we discussed in our previous essay.
 It is both most interesting and instructive that the Dayan essentially followed the pure Halacha in regards to January, February and March but applied Minhag HaMedinah to April and May.
 The cases presented in the Mishna, Bava Metzia 8:4, are examples of dubious situations for which there is no reasonable manner to resolve a dispute, in which case we follow the opinion of the Rabbanan (as opposed to Sumchus) and apply the principle of Hamotzi MeiChaveiro Alav HaRa’ayah.