Question
I do not own a car but received a parking space in the building’s underground parking lot when I bought my apartment, which I use for storage. The neighboring parking spot is also owned by a tenant who does not own a car. Recently, I arranged with someone to reupholster my dining room chairs, which I would leave in the parking lot. Since my spot was already full, I placed the chairs in my neighbor’s parking spot. Two days later I called the upholsterer to find out if he had picked up the chairs and when they would be ready. He replied that he didn’t find any chairs. I then asked my neighbor and he informed me that when he saw the chairs, he assumed they belonged to another tenant who regularly placed all kinds of junk in his parking spot. He therefore, put the chairs next to the garbage bins where people place bulky garbage that doesn’t fit into the garbage bins and the municipality disposes of these items on a daily basis. Does he owe me the value of the chairs, which were in very good condition besides for the need to be reupholstered, or is he excused because they were sitting on his property without his permission?
Answer
Your exact case is not discussed by the Gemara and SA but a similar case is discussed. The Gemara (BM 101B) tells of a person who bought a shipload of wine but didn’t have room to store all of the wine barrels. He asked an unmarried lady, who had room, to rent him some space but she turned him down. He then married the lady who then gave him permission to store his wine. After he brought in the wine, he divorced the lady. She then sold an amount of his wine in order pay the porters whom she hired to remove his wine and place it on public property. The Gemara says that she acted properly because his permission to store the wine on her property ceased when he divorced his wife, since it was clear that she only granted him permission because he married her.
The Rosh (BM 8, 26) comments that she was required to inform him that his wine was placed in the public property and by doing so, she was absolved from any subsequent damages that he may suffer as a result of her placement of the barrels of wine in an unsafe place. However, what is important for our case is the clear implication of the Rosh that had she failed to inform him that she placed the barrels in an unsafe place she would have been liable for the barrels.
The Rambam (Secherus 7, 7) also cites this Gemoro. However, he just writes that it is a middas chassidus- a proper action to inform the beis din that the barrels are in an unsafe place so that they will be able to sell some barrels and rent a storage facility for the barrels. The Mechabeir (319, 1) quotes the Rambam word for word and the Ramo cites the ruling of the Rosh dubbing his opinion, “some say”, which is the way that the Ramo usually introduces a dissenting opinion, whose opinion he rules to be authoritative.
While the Rosh is quite clear that informing the owner is imperative in order to be absolved of responsibility, the commentaries disagree whether the Rambam agrees. The Beis Yosef maintains and that is the implication of the Ramo that according to the Rambam even if the owner was not informed, he is not entitled to payment if his goods were lost. However, the Sema (note 2) and Bach maintain that even the Rambam maintains that if the owner was not informed and his possession is lost, he is entitled to payment. On the other hand, the Ketsos (note 3) agrees with the Mechabeir and Ramo that according to the Rambam he is not entitled to payment.
Thus, according to the Rosh and Ramo and the Sema and Bach your neighbor is liable for your chairs. However, we have to study the Rambam in order to determine what he would rule.
Before, determining the answer, it is important to understand the issue. The first point is how to characterize the place where your neighbor placed your chairs. The Gemoro (BM 25B) writes that one may take an object that he finds in a garbage heap that is destined to be collected because he can assume that the owner was mafkeir -rendered it ownerless. Thus, when your neighbor placed your chairs next to the garbage, he placed them in a very unsafe place. When one places someone else’s object in an unsafe place he is damaging the owner of the object. There is only an issue whether it is considered to be direct damages, which is the opinion of the Nesevos (in many places including 291, 2) and others, or indirect damage called garmi. However, in either case the one who placed someone else’s object in an unsafe place is liable for the damages.
Since the one who placed someone else’s object in an unsafe place is liable, the meforshim question the Rambam’s opinion, if we understand him like the Mechabeir and Ramo, since one is generally liable if he damages someone else’s property. Therefore, why should this case be different?
This issue was raised by Rav Moshe Feinstein (CM 2, 56) and the Chavos Ya’ir (res 165, cited by Pischei Teshuvo (319, 1)), when they were asked to rule about cases that are similar to yours.
The case that Rav Moshe addressed concerned a person who bought esrog boxes and as part of his deal, he agreed that the seller may store his excess boxes by him for three months. However, the owner did not return after three months to retrieve his boxes. Only a year later he returned and said that soon he will take his boxes. However, another year went by and he still hadn’t removed his boxes. The property owner., who now needed the space, turned to Rav Moshe for guidance. The difference between this case and the case of the Gemoro is that whereas in the case of the Gemoro the identity of the owner was known, here the property owner was totally unaware of the identity of the owner of the boxes and therefore, was unable to inform him that he was going to remove his boxes.
Rav Moshe explained that the reason in the case of the Gemoro the Rambam allowed the property owner to remove the wine barrels and place them on public property without informing the owner was because the owner lived in the same place and should have expected that his former wife would remove the wine barrels. However, in the case of the esrog boxes, the owner of the property could not assume that the owner of the esrog boxes would remove them, especially since they weren’t removed for the past two years. Therefore, Rav Moshe ruled that the property owner was not allowed to place the boxes in an unsafe place and if he would, he would be liable. The only thing he could do is what the Rambam and SA rule, namely to sell some of the boxes and with the proceeds from the sale, rent a storage area for the boxes.
The Chavos Ya’ir was asked about a war situation. Due to the precarious situation many of the people in the outlying villages moved their possessions into the central city. The house of one of the city dwellers became so full of other people’s possessions, that were placed in his property without permission, that he almost had no place to live. He determined the owner of almost all the possessions and told the owners to remove them. However, there was one person whose identity he was not able to determine. He removed this person’s possessions from his house and placed them in his courtyard.
When the owner came to retrieve his possessions, he discovered that some items were missing and some had been damaged by the rain. The Chavos Ya’ir considers whether the owner of the house was liable in light of the general rule that ovid inish deno lenafshei-there are times when one is allowed to take the law into his own hands. However, he says that one is only allowed to damage another, based on this rule, if there is no other reasonable means to solve the problem. However, in this situation the home owner did not have an urgent need to remove these possessions from his house and even if he would have, he could have availed himself of the Gemoro’s solution by selling some items and renting a storage space. Therefore, he ruled that the homeowner is liable for the loss. The Pischei Teshuvo concurs with this ruling.
In your case it is clear that both the Chavos Ya’ir and Rav Moshe Feinstein and probably all poskim would agree that your neighbor is liable for your loss. According to the Rosh, his failure to inform you certainly suffices to render him liable. As we mentioned, some poskim understood that the Rambam always concurs with the Rosh. Furthermore, according to Rav Moshe and the Chavos Ya’ir, in your situation even those who maintain that the Rambam disagrees would maintain that your neighbor is liable since it certainly was not a foregone conclusion that you would become aware that your chairs were placed next to the garbage before the municipality would remove them. Furthermore, even if your neighbor needed to remove your chairs from his parking slot, he certainly did not have to place them next to the garbage-the most unsafe place. Moreover, he could have put up a sign at the entrance of the building asking the owner to remove his chairs.
