Last weekend we rented a ten bedroom villa with a large dining room for a family Bar Mitzva. Shortly before Shabbos the electricity went off so we shut a few air conditioners and switched the electricity back on. A few minutes later, when it was already bein hashmoshos, the electricity fell again. We quickly called a goy, told him to turn off a few more air conditioners and to switch the electricity back on. About an hour later the electricity fell again and since it was already Shabbos we didn’t want to ask a goy to turn it back on and so we were without electricity for the remainder of Shabbos. I should note that it was not a very hot Shabbos and there are many windows so even though we would have otherwise used the air conditioners, it wasn’t really uncomfortable without them. However, we didn’t have lights and we had to eat cold food on Shabbos day. Are we entitled to a reduced price and if yes, how much, if anything, do we owe?
The first issue that needs to be addressed is whether your rental, since the problem existed at the outset but could have been rectified if you had called a goy, is considered a mekach to’us.
There is a major dispute among the poskim whether one who is in your situation may call a Shabbos goy to look and once he was there he would notice that there is no light and without you telling him to do anything he would correct the problem. (See Orchos Shabbos chapter 23, footnote 24 for a lengthy discussion of the subject.) Rav Eliashev, Rav Shlomoh Zalman Auerbach and many others maintain that one is not permitted to do so, but other poskim, including the Chaye Odom and the Rav Shulchan Aruch and Rav Moshe Feinstein, permit one to notify a Shabbos goy and at most hint to him, without giving any commands, that there is a problem with the electricity in your house. The latter is also the general custom. Thus, the first issue is whether one who wishes to be stringent can afterwards claim that his rental is a mekach to’us.
The issue is discussed in a slightly different context by the Terumas Hadeshen (1, 322). He rules that while normally one who is given lower quality meat cannot cancel his purchase on the grounds that the sale is a mekach to’us (unless the price is too high), nevertheless if it is known (even if the seller was unaware) that this particular customer does not ever eat the lower quality meat he is entitled to cancel the sale. The reason he requires it to be known that the customer never eats this type of meat is because otherwise we suspect that this is not the case and the customer sometimes does eat such meat but wishes to cancel this sale because he was not satisfied with the quality or for some other invalid reason. We see from this ruling that we take into account a customer’s personal behavior even if it is not a behavior that is shared by the majority of the population. The Terumas Hadeshen says this explicitly and proves his point from a ruling of the Gemara.
By the same reasoning, if a person has a personal, well-grounded reason in halachah to act a certain way, we take this behavior into account in determining that a sale is a mekach to’us. This analogy was made by Rav Ovadia Yosef (Yabia Omer CM 5, 6) as well. Therefore, the owner cannot tell you that you should have called a goy to straighten out your problem with the electricity since you are stringent on this issue like many modern poskim. There is no need for it to be public knowledge that you are stringent since there is no reason to suspect that there is any other reason you did not call the Shabbos goy.
There is one more issue that needs consideration before we can rule that the rental is a mekach to’us. The Shulchan Aruch (CM 232, 3), based on the Rambam (Mechiro 15, 3), rules that if a customer uses the item that he purchased after he discovered that it has a defect, he may no longer cancel the sale. Thus, we have to consider whether your use of the villa after you realized that there was a problem with the electricity prevents you from voiding the rental agreement.
The Magid Mishna explains that the rationale of the Rambam is that when one uses the object in spite of the defect he shows that the defect is not critical. Based on this rationale many, including the Pischei Teshuvo (CM 332, 1), rule that if one who rented a horse discovered a defect when he was on the road, he may void the sale even though he continued using the horse until he returned home since his use doesn’t show that the defect was unimportant. Rather, we attribute his use to necessity since the alternative is to walk. Similarly, your continued use doesn’t indicate acceptance of the blemish since you did not have a reasonable alternative when you discovered the problem.
Having established that you may void the rental agreement we have to consider whether you owe anything for your use of the villa.
If you void the rental agreement then you are like anyone who uses someone else’s property without a rental agreement. The basic rule in that case is that if one uses someone else’s property he must pay for his use only if the owner suffered any loss as a result of his use. The reason is because otherwise it is ze nehene ve ze lo choseir – the one who lived there benefited but since the owner did not suffer any loss the beneficiary does not need to pay anything.
Based on this principle, the Ramo (363, 10) rules that if one lives in a house that was not up for rental he doesn’t owe anything for using the house since the owner did not lose any rental income. Thus, one could argue that since the Shabbos you used the house the owner couldn’t rent out the villa anyway that you needn’t pay anything for using the house.
However, the Gemara says that if one lives in a house and as a result he caused the walls to become even a little dirty he must pay for his use of the house. Many meforshim (P’nei Yehoshua BK 20A and many others) explain that the reason is because one generally must pay for the benefit he derives from another person’s possessions. It is only in case the owner suffered no loss whatsoever as a result of the beneficiary’s use that the one who benefited does not need to pay because it is midas Sedom for a person to prevent others from benefiting from his possessions if he suffers no loss. If he does suffer a loss, it is not midas Sedom to prevent others from causing him that loss.
Therefore, if there was any loss whatsoever (according to many including Tosafos in Kesubos 30B even a loss which is less than a pruto (about two cents) suffices!) that was suffered by the owner of the villa as a result of your stay in the villa, you are required to pay the value of the benefit you derived from your use of the villa.
We find in the Gemara (BK 20B) that even an expense that was incurred in order to enable the beneficiary to make use of the property also qualifies as a loss that causes the beneficiary to be required to pay for the benefit he derived. The case that is discussed in the Gemara is where one person had a field which was surrounded on all four sides by another person’s fields. The Gemara (according to many Rishonim including Tosafos and the Ramban) rules that if the owner of the outer fields constructs an exterior fence to prevent intruders from entering his property, the owner of the inner field must pay his share of the cost.
The Gemara explains that the reason is because the inner field also benefits from the wall and the inner field caused a loss to the owner of the outer field. The loss that he caused to the owner of the outer fields is that by virtue of his inner field, the owner of the outer fields was forced to make a longer fence since the perimeter of the field would have been shorter if his fields were consolidated, which they couldn’t be due to the presence of the inner field.
Thus, we see that an expense that was caused by the beneficiary in order to enable him to derive benefit suffices to require the beneficiary to pay for his benefit. In your case, because of your stay the owner of the villa had to clean and otherwise prepare the villa for your use. Besides this you did use the electricity for the short time it worked and used water and caused other expenses.
Thus we have established that you do not have to pay the original price but you do have to pay for the benefit you derived.
The final issue is thus how much you need to pay. People in your situation often argue that they shouldn’t have to pay anything because they never would have rented this type of property. However, even though this is true, nevertheless since you did derive benefit you need to pay.
It is not possible for one who is not acquainted with the property to give a precise amount. A suggested approach is: since you must pay for the benefit you actually received and the original price was based on the benefit you expected to receive, you should make a list of the benefits you expected to receive and the ones you actually received, and use this list to make an agreement with the owner to pay a percentage of the original price.