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Chaye Soroh-Unforeseen gain from another’s lawsuit



The contractor who built our building had an agreement with the municipal authorities to grant them the first floor of the building he erected. He fulfilled his commitment and gave them the first floor. The municipality proceeded to rent the floor to a school for children who had problems (drugs etc.). Since we, the neighbors, were very upset because these students could detrimentally affect our children we hired a lawyer and took the municipality to court to force the municipality to rent to better tenants. After working on the case and presenting various arguments our lawyer discovered that the entire agreement between the municipality and the builder was illegal and the municipality had no rights to the first floor. He presented new arguments to the judge who agreed and ruled that the municipality had to return the floor to the contractor. In conformance with the judge’s decision the municipality returned the first floor to the builder who fixed it up as apartments which he then sold. We paid the lawyer thirty thousand dollars in fees. Can we force the builder to share in the cost of the lawyer’s fees since he reaped a huge gain from our lawsuit and had we not spent the money he never would have had this profit? Essentially we paid for his gain so it would seem fair that he should pay.


As in any other case where we wish to force someone to pay something, we have to determine the basis for such a claim. Since only the tenants and not the contractor hired the lawyer, certainly the lawyer cannot bill the contractor and it would seem that the contractor can argue that he owes nothing. However, in Torah law there is an issue to consider since even when one does not hire someone to work he may need to pay him because of the benefit he received.

Since the lawyer’s bill was paid in full by the tenants, the lawyer has no claim on the contractor. But the tenants who paid the lawyer fees perhaps can claim that the contractor owes them money because he really should have paid a portion of the lawyer’s fees and essentially they paid his bill. Thus we have to study the rules when one must pay for a benefit he receives since there are many situations where one does not need to pay for his benefit. For example, a building cannot charge people who sit in its shade.

The basic rule governing payment for benefits is that ze nehene vezeh lo choseir potur, if one benefits from someone else (or his actions or his property) but the benefactor has no loss, the beneficiary is not obligated to pay. However, if the benefactor suffered a loss, even if it is a small loss, the beneficiary has to pay the value of the benefit he derived.

For example, the Gemara (BK 21A) rules that if one who squats in a vacant apartment dirties the walls, he is required to pay rent in full since he caused a loss to the owner. However, if the owner did not suffer a loss, the squatter does not owe anything since his benefit did not come at the owner’s expense. Your case is somewhat tricky because you spent money and it is only because you spent money that the contractor received an additional floor, but you spent the money for yourselves so perhaps it does not qualify as a loss.

The basic law that deals with this particular situation was given by the Ramo (CM 264, 4). He discusses a case of a person-A, who hired an agent to work to recover his lost seforim. The agent not only succeeded in recovering A’s seforim but also seforim that belonged to someone else-B. The Ramo rules that it depends on the intention of A when he hired his agent. If he intended to recover both his own seforim as well as the B’s seforim, even if he wasn’t asked to do so by B, and even if he didn’t need to pay anything extra for recovering B’s seforim, B must pay. However, if he did not intend to benefit B, even though B in the end did benefit from his actions, nevertheless, B need not pay. The reason is because if A intended to benefit B as well, then he effectively spent money on B as well and B is a ze nehene ve ze choseir because his benefit stems from A’s expense. However, if A only intended to benefit himself then he spent no money on B and B is a ze nehene ve ze lo choseir.

An interesting application of this principle is a ruling of the Yad Eliyohu (res. 74). In his situation there were three Jews who lived in the center of town and the gentiles wanted to force the Jews to move to the outskirts of town. One of the Jews-A spent money and effort to enable the Jews to remain in their residences and asked B and C to chip in. They refused. The Yad Eliyohu ruled that if A had been unaware of B and C they would not have to pay anything because then his entire expense was for himself. However, since A was aware that B and C were in the same situation as he, they have to pay their share. He argues that since had A acted just on behalf of B and C they would have had to pay since then A would be a ze nehene vezeh choseir, therefore, even when A also benefits, B and C are not freed from their obligation. He adds that even if B and C had said at the outset that A should not act on their behalf because they don’t intend to pay, they are required to pay because we understand that they were only saying that because they knew that A was going to spend the money anyway and they were attempting to free themselves from paying money that they were required to pay.

Therefore, it seems that you cannot force the contractor to share the money that you paid the lawyer to force the municipality to bring different tenants, since that was an expense that was not intended for and did not benefit the contractor. However, the money you spent after your lawyer discovered that the entire deal was illegal, and he spent time and effort arguing so before the judge, you can require the contractor to share in this expense since the lawyer at that stage was working on behalf of all of you.

Having determined that you can require the contractor to pay something, we must determine how much he has to pay. There are two issues that need to be addressed. The first issue is what has to be shared: is it expenses or benefits? The reason is that the benefits that were reaped by both parties were far greater than the expenses.

We find that if a person who was not hired performs work on someone else’s behalf he is paid the usual cost even if that is higher than the actual cost. For example if A has a friend who is a gardener and he pays him to plant a garden for his neighbor-B and B is very happy with his new garden, then B will have to pay A the amount one normally pays to plant a garden even if that is more than A actually paid because the gardener gave him a discount. However, in your case since you hired the lawyer in order to help yourselves, the Nesivos (158, 8) proves that you can’t ask for more than your beneficiary’s share in your actual expenses.

The second issue is how to divide the expense between the two parties. This is a general issue that comes up whenever there is an expense that needs to be shared by several individuals who did not make an agreement about how to allocate the cost. The Gemoro rules on this issue in two situations. One situation (BK 116B) is where a caravan traveled in a desert and they needed to hire guards to protect the entire group from bandits. The Gemoro rules that the determinant is the value of the goods that each person had with him. The rationale is that this reflects the relative benefit that each person derived from the guards’ employment since the bandits were only interested in stealing their possessions.

This principle is the basis for a dispute how to divide up a town’s expense to construct a protective wall. One opinion in the Gemara (BB 7B) is that the determinant is the value of the possessions in each house. The second opinion is that the determinant is proximity to the wall since the likelihood of theft depends on proximity to the edge of the town. In either case again the determinant is the benefit.

In our situation it is somewhat difficult to determine exactly how to allocate the cost of the lawyer since, while one can determine the dollar amount of the contractor’s benefit, the neighbors’ primary benefit was not monetary. It was to free themselves from undesirable neighbors.

A plausible solution is to consult three professional estimators to estimate the value added to the price of the neighbors’ apartments, since that basically reflects how much people value ridding themselves of undesirable neighbors, and this is the gain the neighbors reaped from the lawyer’s work.

In conclusion: The neighbors can force the contractor to share in the specific expenses they bore that forced the municipality to return the floor to the contractor. The exact amount the contractor needs to pay requires an evaluation and then the division should be made in proportion to the relative benefit of each party.





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