The Mishnah (Avos 5:10) makes the following statement:
There are four dispositions among men. One who says, “What’s mine is mine, and what’s yours is yours”—this is an average personality trait. And some say, this is midas sedom.
As we will see below, the latter opinion, which asserts that the disposition of “what’s mine is mine, and what’s yours is yours” is considered midas sedom, was accepted by Chazal in a halachic sense, giving rise to numerous practical ramifications. Before coming to the halachic question and debate, it is worth giving brief attention to the concept of midas sedom as mentioned in the Mishnah.
The Moral Flaw of Midas Sedom
At first glance, the statement whereby “what’s mine is mine, and what’s yours is yours” does not appear to comprise the grave evil that we associate with the town of Sodom, and Chazal’s casting of the disposition as Sodom’s basic attribute, requires a measure of scrutiny. What, indeed, is so terrible about declaring that “what’s mine is mine, and what’s yours is yours,” that it brought about the terrible punishment described in the Torah? Moreover, if the first opinion quoted in the Mishnah could maintain that this disposition is the “average personality trait,” how can the second opinion—which is the attitude accepted by halachah—give it such a degrading and heinous label as “the attribute of Sodom”?
Rabbi Yitzchak Arama’a, in his Akedas Yitzchak, finds a solution to this question by distinguishing between the ways of a private individual, and the ways of an entire community or town.
The attitude of “what’s mine is mine, and what’s yours is yours” is the antithesis of chessed, the diametric opposite of kindness and altruism. For an individual, the practice of the disposition presents a grave flaw: by adopting the isolation embodied by the attribute, a person disassociates himself from chessed, from the attribute of our first patriarch, Avraham.
Yet, as the first opinion of the Mishnah indicates, this characteristic remains within the normal range of human dispositions. The average individual leans towards individualism rather than altruism, to selfishness rather than selflessness. Although the severity of moral flaw involved should not be underestimated, he continues to stride on the “middle path” of humanity.
Sodom, however, brought this evil to altogether different proportions. In Sodom, the negative trait evolved from being an individual disposition into a way of life, an idea that regulated every aspect of government and society. The wickedness of Sodom was not the individual practice of the disposition, but its widespread institutionalization, pervading the parliament, the judiciary, and every aspect of general society.
The Gemara (Sanhedrin 109a) states that the root of their sin lay in the physical goodness that the citizens of Sodom were blessed with. On account of their affluence and prosperity, the people of Sodom learned to fear outsiders, believing that visitors and guests would wreak havoc on their idyllic existence. In order to protect themselves from strangers, they institutionalized the human characteristic of “what’s mine is mine, and what’s yours is yours.”
The gravity of their crime was thus the creation of a chessed-free society. By expelling kindness from their midst, Sodom shredded the very fabric that society is made of. As Midrashim teach, this brought them to commit every evil, including torture, murder, and even idolatry (see Sanhedrin, loc. cit.). Without the support of a social structure, their rampant individualism brought them to every ill under the sun, until they lost their very right to human existence.
One Gains and the Other Does Not Lose
From the moral aspect of midas sedom—which has much to teach in today’s day and age—we come now to its halachic implications. To what extent does halachah ban the practice of midas sedom, and to what degree is its contrary—the practice of kindness—enforced?
The concept of midas sedom is referred to in halachic terminology as the situation whereby “this one gains, and the other does not lose.” When one person is able to give his fellow some form of benefit, without incurring any loss to himself—yet he refuses to permit his fellow this benefit—we are presented with a case of midas sedom.
One application of this principle mentioned by the Gemara involves a number of brothers, who inherit several plots of land from their deceased father. One of the brothers, who owns a plot of land adjacent to one of the plots in the inherited estate, now approaches his brothers, asking them to take his share of the inheritance in the plot adjacent to his personal land. This is of great benefit to him, for it would allow him to have his properties together, and it is of no loss to his brothers, for they would receive their equal shares in any case.
Their refusal to permit their brother’s taking his inheritance in the plot of land he desires—provided that this implies no loss to themselves (the quality of land is the same, and so on)—is therefore a classic case of midas sedom. In the words of Rashi (Kesubos 103b), “they do not do favors to one another.”
The question is now: Does beis din force the brothers to permit him to receive the desired plot, or is midas sedom a moral flaw that beis din does not enforce?
The Case of the Squatter
The basic Talmudic source for this question discusses a case of a squatter—somebody who lived in another’s property without permission. If the property is intended for rental, the squatter’s presence has caused the property’s owner a loss, and the squatter, provided he has received financial benefit from his stay in the property (meaning that he has no free alternative accommodation), is certainly liable to pay. If, on the other hand, the property is not intended for rental, and the squatter has not derived any benefit from his stay (he has alternative free accommodation), the squatter is certainly exempt from payment.
The case in question, as the Gemara explains (Bava Kama 20a), is a case in which the property is not intended for rental—the owner has not suffered any loss on account of the squatter—and the squatter has gained (he does not have alternative accommodation). One (the squatter) has gained, and the other (the owner of the property) has not lost. Does the squatter have to pay for his stay, or not? The Gemara quotes a dispute of Amoraim concerning this question, and does not reach a concrete conclusion.
It should be noted that even a small loss incurred by the property owner, such as the (slight) blackening of walls caused by a tenant, is sufficient for him to claim payment for the entire benefit derived by the squatter. Because he has incurred a loss, the case is no longer a case of midas sedom, and the squatter must pay his full dues. The question of midas sedom only arises when the owner of the property has incurred no loss whatsoever.
In addition, the Gemara only discusses the post factum case in which the squatter has already derived benefit from the property, and the Rishonim discuss what the halachah would be when somebody asks for a costless favor in advance. For instance, consider a case in which Reuven asks Shimon, who is sending a parcel by mail, if he can add a letter to the parcel. Shimon is sending the parcel in any case, and the letter will cause no additional cost, and no (we may assume) inconvenience. Would beis din force Shimon to allow Reuven to send the letter, or is the halachah of midas sedom restricted to the post factum payment for an unknowing favor?
Halachic Rulings on Midas Sedom
The Shulchan Aruch (363:6) rules that post factum, one who gained from a property at no expense to its owner is exempt from payment. However, the Shulchan Aruch writes that if the owner tells the squatter to leave, and the squatter refuses to do so, the squatter would be obligated to pay for his benefit. This implies that we do not force the owner of the property to permit others to benefit from it, even where no loss would be incurred.
The Rema adds a qualification to this ruling. We do not enforce the concept of midas sedom where the owner has some way of deriving (financial) benefit from his property. If he has no way in which to derive any benefit from the property, beis din would impose the precept of midas sedom even in advance of the other’s benefit, and the owner would be obligated to allow the squatter to live on the property.
Thus, in the above case of the parcel and the letter, the ruling of the Rema places an obligation on Shimon to permit Reuven to send a letter together with his parcel. According to the Shulchan Aruch, however, it can be argued that there is never an obligation to do a favor with others, and the halachah is limited to post factum cases in which benefit has already been derived (this argument is voiced by the Noda Biyhuda, tinyana 24).
There are many halachic ramifications of these rulings. We will limit our discussion to two examples.
A well known precept of Torah law declares that when a person is survived by his sons, daughters do not receive any portion of their father’s inheritance. Legally, however, the sons often run into difficulties on account of the Law of the Land, according to which daughters inherit an equal share. In order to claim the properties that are theirs according to Torah law, the sons find themselves reliant on their sisters’ willingness to sign a waiver document in their favor.
The Poskim discuss whether or not the daughters are obligated to sign this document without demand of compensation, or whether they are permitted to demand payment, or a share of the inheritance, in exchange for their signature. The property, according to Torah law, belongs to the brothers, yet their receiving it depends of their sisters’ signature: would the daughters’ refusal to sign (without compensation) be considered midas sedom? The sons, of course, stand to gain much, and the daughters, it would appear, stand to lose nothing, because they have no legal share in the property.
Halachic authorities are divided on this question. According to the Erech Shai (Choshen Mishpat 60:9), the daughters are obligated to sign the waiver document, because we enforce midas sedom. This is also implied by the Chasam Sofer (Choshen Mishpat 142), and stated explicitly by the Beis Shlomo (Orach Chaim 85:3).
However, Maharia Halevi (1:4) cites two early authorities who disputed the matter, and writes that we do not have the power to force a daughter to sign a waiver document. This is also the opinion of a number of poskim (Shoel U-Meishiv 3:1:78; Cheshev Ha-Efod 2:106), and it has become common custom for daughters to make financial demands in exchange for their signing a waiver document. ((The question of how much the daughters should receive is left open. Although the Ben Ish Chai writes that they should receive one tenth of the inheritance, this position has not been adopted by most batei din, and each case is decided on an individual basis. Of course, the best solution is a compromise that all sides are satisfied with.))
Another common issue in which issues of midas sedom are involved is the question of communal property, for which only one neighbor has effective use. For instance, a the basement floor of a building (a chalal in Hebrew) is the communal property of all the neighbors, yet only the occupant of the ground floor can make effective use of it by joining it to his apartment. Can the owner of the ground floor claim midas sedom in requesting permission from his neighbors to make personal use of the area? A similar question would apply to the roof: Can the owner of the top floor apartment use the concept of midas sedom in demanding that he be permitted to use the roof for personal benefit?
Other questions would involve making use of personal or communal property for such purposes as hanging a peg, placement of a ladder, and so on. Does a person have halachic right to such uses on account of midas sedom?
The questions, based on the rulings of the Shulchan Aruch and the Rema, requires a twofold analysis. First and foremost, do the neighbors sustain any loss? Perhaps they would be able make use of the roof, or the basement floor, for some constructive purpose? If there is any loss to the neighbors, the principle of midas sedom would certainly not apply.
Even assuming that there is no loss, the question remains if we would force the neighbors to give their consent to their neighbor’s building plans. As Rav Shimon Shkop explains (Bava Kama, no. 19), we do not force somebody to allow a squatter into his house—in spite of the principle of midas sedom—because the squatter’s enforced residence effectively strikes at the owner’s ownership. In the case of neighbors, too, even under the assumption that no losses are incurred, granting the bottom floor building permission would negate their ownership rights, and, perhaps, the principle of midas sedom would not be effective in forcing them to comply.
However, with regard to hanging a peg or leaning a ladder, the neighbors’ ownership is unharmed, and therefore, provided that no loss is incurred, the use could fall under the ‘enforceable’ category of midas sedom. Indeed, we find a ruling in the Shulchan Aruch (Choshen Mishpat 253:13) that permits a person to use his neighbor’s yard for placement of a ladder. The neighbor, as the Shulchan Aruch, cannot object, for he incurs no loss, and his objections would infringe the principles of midas sedom.
- Midas Sedom, meaning, the unwillingness to help others even at no expense to oneself, is a grave character flaw, the more so when it becomes the societal norm. A Jew should seek, over the course of a lifetime, to internalize the dispositions of kindness and giving.
- Post factum, if a person derived benefit from another’s property at no expense to the owner, he is not liable for payment.
- Before the event, we do not, under most circumstances, enforce the principle of midas sedom in forcing an owner to allow others to benefit from their property.
- According to the Rema, if a person has no way in which to derive benefit from his own property, but others can derive benefit from it, he is obligated (and beis din enforce) to allow others to derive benefit. Some authorities maintain that even under these circumstances, midas sedom is not enforced.