Question (from last week)
I recently flew with El-Al from England to Israel. I am tall and the flight was not full so I moved to a seat that has more leg room. If I would have requested this seat when I booked my flight I would have had to pay a higher price for this seat. However, since it is not such a long trip, I didn’t ask for a special seat in order to save money. However, I figured if no one is sitting there anyway I might as well sit there and be more comfortable. Do I owe the airline anything and even if not, was my action proper?
Last week we learned that the rule is that one who benefits from another person’s property in a manner that the owner suffers no loss is not liable for his monetary benefit. However, we explained that the situation in question cannot be classified as one where the owner suffers no loss, because there are two ways that the airline does suffer what the halacha considers a loss. One is that if people know that they can occupy the vacant more expensive seats fewer people will buy the more expensive seats and the loss of potential profit is viewed halachically as a loss. The second loss is because the higher price the airlines charge for these seats is just the way that the airline divides up its costs and its profit margin. The airline’s costs are halachically considered as its loss.
Today we will study a different reason why you are liable, a reason that applies even if we would classify this as a situation where the airline does not suffer any loss.
The Tur (siman 363) and consequently the Shulchan Aruch (363, 6) rule that one who lives on another person’s vacant property that was not being offered for rental is liable if the owner ordered him to leave. The Tur does not give a source or a reason for his ruling. Many commentaries including the Machane Efraim (Gezeilo 10) and Gra (363, 13) write that the source is a ruling of the Gemoro (Bava Kama 21A) where the owner of the property was not a private person but hekdesh. It was the property of the Beis Hamikdash.
The Gemoro rules that even if hekdesh had no intention to rent out or otherwise make use of its property, nevertheless, one who used it must pay for the benefit he derived from his use. Tosafos explains that the reason is because it is the known intent (based on the Torah’s rules of me’iloh) of hekdesh not to allow anyone to use its property without paying for it.
Thus we see that the proper way to understand the basis for the rule that one who benefits from use of another person’s property where the owner suffers no loss is not that the owner was not allowed to charge for the benefit but that the owner did not want to charge for the benefit. Therefore, if the owner makes it clear that he is not willing to allow others to use the property unless they pay for it, they must pay even though the owner did not suffer the slightest loss.
The Machane Efraim derives from this the opinion of Tosafos in a dispute between the Ohr Zorua (Bava Kama 123-4) and the Ra’avyo (also cited in Hago’os Ma’amonei Gezeilo 3). The dispute concerned a person who normally rented out his property but due to pressing circumstances was forced to leave town before he had a chance to find a renter or a rental agent. The Ra’avyo ruled that one who lived on the property is not liable for his use because the owner did not suffer any actual monetary loss since the property was anyway not available for rent. However, the Ohr Zorua (also cited and agreed to by the Yam Shel Shlomo (BK 2, 16)) ruled that he is liable if the property was rented out at other times when an agent or the owner was present. The Machane Efraim explains that the rationale is that the owner has the right to forbid use of his property by anyone who does not pay for its use since that is not midas sedom. Therefore, we understand that it is the owner’s intention to condition permission to use his property on payment for its use. As a result, anyone who wishes to avoid being classified as a thief for using the property must pay for its use. The Machane Efraim derives support for this opinion from other sections of Gemara and consequently rules that this is the correct approach.
The Ramo (363, 10) rules in the case of the above dispute that one who lives on a vacant property is not liable if the owner of the property was not present and he did not leave an agent to manage his property since the owner did not suffer a monetary loss. However, this is consistent with his approach (363, 6) that if anyway the owner cannot earn money from his asset we can force him to make it available to others for free since otherwise it is considered to be midas sedom. However, many disagree with the Ramo (see Pischei Teshuvo (363, 3) and prove that such behavior is not considered midas sedom.
Moreover, there are others (Ulam Hamishpot 363, 6) who explain that even the Ramo only ruled that one does not have to pay when the owner was not present because we assume that the owner is happy that he is living there because otherwise undesirables may occupy his vacant property. Support for this approach can be brought from the fact that in another place (174, 1) the Ramo himself maintains that one who prevents others from gaining where he does not have a loss is not considered as behaving like midas sedom.
In conclusion concerning the question of whether you would have to pay even if the airline did not suffer a loss, we have seen that the explicit ruling of the Shulchan Aruch is that if the airline would inform you or have a known policy (this is similar to hekdesh) that one may not sit on a more expensive vacant seat without paying its price then you would have to pay the airline the price it charges one who orders this seat. We have seen further that there is an opinion that even then you are not liable and from one place it would seem that the Ramo would side with this opinion but this is not certain and also it would then be contradicted by another ruling of the Ramo. Furthermore, we can say with certainty that in this situation even if you would not be liable, you were certainly not allowed lekatchelo to occupy this seat, even in the hypothetical situation where the airline did not suffer a loss.
Moreover, even if you weren’t told anything, in general there is a slight issue whether you are allowed lekatchelo to benefit from another person’s property without permission if the owner does not lose (ze nehene vezeh lo choseir) . The Chassam Sofer (CM 79 c.v. venereh li) writes explicitly that it is permitted even lekatchelo and this is the explicit opinion of others (including Beis Efraim CM 49 c.v. veroesey and the Nesivos 250 16) but it seems that there are others (e.g. Shitto BK 20A in the name of R Yeshayo) who disagree. However, on this matter one can rely on the poskim who permit it, again, in a situation where the owner has no loss.
Based on the considerations from last week, that in your situation the airline is considered to have a loss, you have to pay the extra fare.
However in this situation, of a commercial airline that runs many flights daily, the critical question is what its policy is in such situations. If it does not allow passengers to move then you will have to pay for the difference in price between the seat you paid for and the seat you occupied because of its loss as we discussed last week, and according to many because of the reason we discussed in this article. However, if you ask and are given permission to move or know that the airline’s policy is to allow your behavior then you may move without liability.