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.”
When we reflect on the destruction of Sodom, we are more likely to think about sodomy than about the seemingly mild character flaw of those who claim, “What’s mine is mine, and what’s yours is yours.” And yet, the second opinion of the Mishnah, which Chazal treat as halacha, defines the flawed character trait of Sodom as the atomic, individualistic approach to society whereby the individual claims: What’s mine is mine, and yours is yours.
Rabbi Yitzchak Arama, in his Akedas Yitzchak, explains that midas Sedom is the antithesis of chessed, the opposite of kindness. When a person declares his material isolation from the community, he effectively disassociates himself from chessed, from the attribute of Avraham Avinu. According to first opinion of the Mishnah, this character trait is within the normal range of human dispositions. The average individual leans towards self-interest, to selfishness rather than selflessness. Notwithstanding his moral flaw, he strides on the “middle path” of humanity.
Sodom, however, brought this negative trait to altogether different proportions. In Sodom, it 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 disposition to self-interest, but its wholesale institutionalization, pervading the parliament, the judiciary, and every aspect of general society.
Their crime was thus the creation of a chessed-free society. By expelling kindness from their midst (for fear of having to share their bounty; see Sanhedrin 109a), Sodom shredded the fabric that good society is made of. As Midrashim teach, this brought them to commit every evil, including torture, murder, and even idolatry. Without a social structure that commends and rewards interpersonal relationships, their rampant individualism brought them to every ill under the sun, until they lost their right to existence.
Must a person pay for benefit that he derives, even where it comes at no cost to the person from whom the benefit was derived? Is the halachic principle of midas Sedom applied post factum alone, or does it even apply on an a priori level? Is it considered midas Sedom for a sister, who does not inherit according to Torah law, to demand payment for her signature empowering her brothers to inherit based on the law of the land? These questions, among others, are discussed below.
One Gains and the Other Does Not Lose
The Gemara intimates in several places (see Rashi, Kesubos 103a; Bava Basra 12b) that the classic case of midas Sedom is situation whereby, “this one gains, and the other does not lose.” When one person can provide his fellow with some form of benefit without incurring any loss to himself, yet he refuses to allow his fellow this benefit—his behavior is classified as midas Sedom.
One application of this principle mentioned by the Gemara involves several brothers, who inherit 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, approaches his brothers, asking them to allow him to take his inheritance in the plot adjacent to the land he already owns. This is of great benefit to him for it allows him to have his properties together, and it is no loss to his brothers, for they receive their shares in any case.
The Gemara mentions several cases, each one raising the question of whether refusal to permit a brother to take his inheritance in the desired plot of land invokes the midas Sedom principle. The question hinges on whether the brothers can claim that they stand to incur a loss in giving their brother his desired plot. The Gemara notes disputes among opinions for borderline cases, but if there is no potential loss at all (there is no potential preference for one plot over the other), this is a case of midas Sedom. As Rashi writes (Kesubos 103b), “They refuse to do favors to one another.”
Assuming a classic case of midas Sedom, a fundamental question that requires clarification is the response of Beis Din. In the case of the brothers who refuse to allow their brother his desired plot, does Beis Din enforce the fair and the just, giving him the plot he desires and leaving them the rest of the estate, 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 empty property without permission.
When the property is usually rented out, the squatter’s presence has clearly caused its owner a loss—the loss of income through rent. If the squatter received financial benefit from his stay in the property, meaning that he has no alternative accommodation, and has therefore gained financially, he is certainly liable to pay. This is a case of zeh neheneh ve-zeh chaser, “This one benefits and this one incurs a loss.” 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. This is a case of zeh lo neheneh ve-zeh lo chaser, “This one does not derive benefit, and this one does not incur a loss.”
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 because of the squatter—and the squatter has gained (he does not have alternative accommodation): zeh neheneh ve-zeh lo chaser, “One (the squatter) gains, and the other (the owner of the property) does not incur a loss.” Must the squatter pay for his stay, or not? The Gemara cites a dispute of Amoraim concerning this question, and does not reach a 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 the full amount due. 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. It does not tell us what the halacha is when somebody asks for a costless favor in advance. For instance, consider a case in which Reuven asks Shimon, who is taking a parcel to a friend abroad, if he can add a letter to the parcel. Shimon is taking the parcel in any case, and the letter will cause no additional cost and no inconvenience.
Would Beis Din force Shimon to allow Reuven to send the letter, or is the halacha of midas Sedom restricted to the post factum payment for an unknowing favor?
Halachic Rulings on Midas Sedom
Recalling the case mentioned above of the brother who wishes to select a specific plot of land for his inheritance, it appears that this is exactly the case of a priori enforcement of the midas Sedom principle: because of midas Sedom, Beit Din forces the brothers to allow him to take the desired plot of land. Tosafos (s.v. kegon) notes this, and (citing Ritzba) writes that in fact, the case does not justify a Torah-mandated enforcement of midas Sedom, and is rather a special rabbinic enactment.
Tosafos explain: “Moreover, that which we enforce an infringement of midas Sedom in cases when one benefits and the other does lose is only true where the squatter has already lived in the empty house, in which case he does not have to pay the homeowner. However, it is simple that the homeowner can prevent him from entering his house […] even in a case where one benefits and the other does not lose.”
Rabbi Moshe Mordechai Farbestein (Shuras Ha-Din, Vol. 2, p. 329) explains that even where there is no concrete financial loss, the forcing of a person to allow another to use his property is considered a loss: The owner is losing control over his property. This idea finds a source in Rabbi Shimon Shkop (Bava Kama 19, sec. 3), who explains that most people are particular about retaining control over their property, and therefore the midas Sedom idea does not apply.
Most early authorities follow this ruling—though it is not undisputed. The Raavya (cited by the Morderchai in Bava Kama 16, and by Hagahos Maimonios, Gezeila 3:9, sec. 4), for instance, writes that we do enforce midas Sedom even a priori, as the simple reading of the inheritance case implies.
The Shulchan Aruch (363:6) rules like the majority opinion, namely that the midas Sedom principle is only enforced post factum: one who had financial gain from a property at no expense to its owner, is exempt from payment. If the owner tells the squatter to leave and the squatter refuses to do so, the squatter is obligated to pay for his benefit—meaning that we do not force the owner of a property to permit others to benefit from it.
There is some discussion over whether the Rema agrees to this ruling of the Shulchan Aruch, or not. The Sema (14) and the Aruch HaShulchan (14-16) understand that there is no dispute between them. However, the Noda Biyhuda (Tinyana 24) understands according to the Rema, we enforce midas Sedom even a priori, but only for cases in which the property owner has no conceivable way of making financial gain from his property (and only according to the Rambam and not the Rosh).
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 sons, his 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, by which daughters inherit an equal share. 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.
Poskim discuss whether the daughters are obligated to sign this document without compensation, or whether they are permitted to demand payment, or a share of the inheritance, in exchange for their signature. The property, based on Torah law, belongs to the brothers, yet their receiving it is contingent on their sisters’ signature: does the daughters’ refusal to sign (without compensation) constitute a case of midas Sedom? The sons, of course, stand to gain much, while the daughters appear to lose nothing, since they have no legal share in the property.
Halachic authorities are divided on this question. Erech Shai (Choshen Mishpat 60:9) states that the daughters are obligated to sign the waiver document, because we enforce midas Sedom. This is also implied by Shut Chasam Sofer (Choshen Mishpat 142), and stated explicitly by Shut 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. This is also the opinion of several later poskim (Shut Shoel U-Meishiv 3:1:78; Shut Cheshev Ha-Efod 2:106), and it has become common custom for daughters to make financial demands in exchange for their signing a waiver.
The question of how much it is proper for daughters to demand in exchange for their signing 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 to reach a compromise that all parties 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, the empty basement of a building (known in Israel as a chalal) is the communal property of all the neighbors, yet often only the ground floor apartment 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 applies to the roof: Can the owner of the top floor apartment utilize the midas Sedom concept in demanding permission to use the roof for personal benefit?
These and similar questions, based on the rulings of the Shulchan Aruch and Rema, require a twofold analysis. First and foremost, do the neighbors sustain any loss? Perhaps they might be able make use of the roof, or the basement floor, for some constructive purpose? If there is any (even a small one) loss to the neighbors, the principle of midas Sedom will certainly not apply.
Even assuming there is no loss, the question remains if we force the neighbors to give their consent to their neighbor’s building plans. As Rav Shimon Shkop explains (Shiurim on Bava Kama, no. 19), we do not force somebody to allow a squatter into his house, despite 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 effectively negates their ownership rights, and, perhaps, the principle of midas Sedom is therefore not effective in forcing them to comply.
This is different from cases such as hanging something on a peg or the right to stand a ladder on the ground. In such cases, neighbors’ ownership is unharmed, and therefore, provided no loss is incurred, such cases can fall under the Rema’s enforceable category of midas Sedom. Indeed, we find that even the Shulchan Aruch (Choshen Mishpat 153:13) permits a person to use his neighbor’s yard for placement of a particular kind of ladder, and rules further that neighbors cannot object to this, for he incurs no loss. His objections therefore run against the principle of midas Sedom.
The Case of Loss Without Financial Benefit
A possibility that the Talmud does not raise is the case of zeh lo neheneh ve-zeh chaser—a case in which the squatter (in the squatter example) has no financial benefit at all (he has alternative accommodation just as good as this one), and the homeowner incurs a loss. Is the derivation of financial benefit an inherent condition for the obligation to pay, or must the squatter pay even if no financial benefit is derived?
Tosafos (Bava Kama 20a) write that deriving financial benefit is a basic condition for creating a monetary debt. In the absence of financial benefit, the damage caused to the homeowner is only caused indirectly (Tosafos note that even somebody who locks a homeowner out of his own house is exempt from damage liability), so that where no financial benefit is derived, the squatter is exempt from liability.
In cases where there is no loss to the homeowner, Tosafos (the Pnei Yehoshua is still more explicit on this) explain that the squatter is exempt because of the midas Sedom principle. However, where the principle of midas Sedom does not apply, it is considered as though the person receiving the benefit agrees to pay for the benefit he receives.
We moreover find in Tosafos (Bava Kama 20b) that even where no damage is incurred, if the person deriving benefit explicitly declares his willingness to pay for the benefit, he becomes obligated to do so. In this case, the agreement is considered more explicit than the regular, implicit agreement of somebody receiving benefit, and the midas Sedom principle therefore does not apply.
May we, and our societies, live up to the high standards the Torah sets for us—standards that demand us to look outside of ourselves, to see our fellows who might be needy or in a tight spot, and to offer them our assistance in any way.