This is a common shailo every year in the winter here in Eretz Yisrael. Those buildings that still use the hasakot that are heated with a method of oil (“solar” they call it) often have many people wanting to “opt” out of the system. The Rabbonim say that such a person even after “shutting” himself off must pay 40%. What is the reason for the 40%? What is it based on? Where does it come from? I have heard there are Dayanim and Batei Dinim in Eretz Yisrael that do not hold of this “40%” business at all since it is a “minhag” that started from a chok (if even that) in the medina that if someone is part of this heating system and doesn’t want to be part of it anymore still must pay 40%.
I have spoken to professionals in the industry who have said that if a person turns off the line going into his house he doesn’t have any benefit at all from the system. Why then should 40% be paid? Where does this so called “minhag” come from? If it is in fact based on a “chok” in the medina (al beit a “Jewish Medina”) why should Jews doing things al pi Din Torah accept it? Does this have a makor in Choshen Mishpat? If the minhag is not widespread among every Batei Din is it possible to say a person would like to hold like those batei dinim? If a clear explanation with makoros could be given in this it would be greatly appreciated. It would be a great toeles for the rabbim as well.
Answer:
The Shulchan Aruch (176:6) rules that a person cannot simply leave a partnership in a unilateral move. This halachic ruling applies even to a partnership in a building, and will apply to the issue of the heating system.
The halachah is that in cases of leaving a partnership unilaterally, the person who leaves must continue to pay his share of the partnership, minus those expenses that are spared on account of his leaving.
In this case, the neighbors will be saving the price of the oil for the person who left; on the other hand, they won’t be saving the costs of running and maintenance, and experts explain that the main part of the expense doesn’t depend on people connected to the system, because the entire system is built for a certain number of apartments, and a significant part of the expense therefore remains, which the apartment owner must pay.
This is more or less the source of the 40% payment. According to the strict halachah, the amount will be determined by an evaluation of how much is saved by a person’s disconnecting from the system, and which expense remains. However, if the 40% custom is widespread it will be binding in halachah, irrespective of its source in the law of the land, because a person who buys an apartment does so with the custom in mind.
Best wishes.
