Question
I recently got stuck in our condominium’s elevator in the middle of the night. I informed the building representative who is responsible for maintenance of the common property and he immediately called the repairman who the building normally uses to come and release me from the elevator. The repairman said that if the situation can wait till eight in the morning, he will charge two hundred-fifty dollars but if he must come immediately, since it is the middle of the night, the cost is five hundred dollars. The representative told him to come immediately and I was released from the elevator and the representative paid the repairman. The next day the representative told me that the two hundred-fifty dollars that the common building fund would have had to pay in any case is its responsibility but the extra two hundred-fifty dollars, which they paid only in order to free me from the elevator at night, is my responsibility since the rule in Jewish law is that ze nehene veze choseir is chayav-if one benefits at someone else’s expense, he is liable for the entire loss. Therefore, since I benefited at the expense of the communal fund, I need to reimburse the fund for the additional money that was spent just for me. Is he correct?
Answer
If the representative didn’t ask you if you want the repairman to come immediately you certainly are not liable since you can tell the representative that you would have stayed in the elevator. The case in the Gemara that the representative cited that one who benefits is liable is where he took the benefit on his own and not when the one who lost gave him the benefit without asking if he wanted the benefit. The specific case that is discussed by the Gemoro is where a person lived in someone else’s house and damaged the house. Since he took the benefit on his own and damaged the house, he is liable.
In your situation, if you were not asked then you were given the benefit and you are not liable based on this rule. According to some poskim you have to pay a small amount since the building representative, on behalf of the tenants, has the status of a yoreid shelo birshus-one who gives another person a benefit without asking if he wants it. However, the amount you would need to pay is capped at the value of the monetary benefit that you received. Thus, even if you do not have the right to demand that they pay the extra money in order to free you immediately, but they did pay to free you immediately without asking you what you wish to do, you would almost always not need to pay the full amount.
If you indicated that you wish to be released immediately the previous arguments do not apply. However, there are other factors that need to be considered.
The first point to consider is whether the building association had an obligation to you to release you from the elevator or could they have argued that the problem was entirely yours. The second point is whether, if they had such an obligation, they even have an obligation to pay extra in order to release you immediately.
We find in the Gemara that restricting someone’s freedom to go somewhere is considered an act of damage. For example, the Gemara (BK 28A) writes that if a person placed his barrels in the public thoroughfare interfering with normal passage, pedestrians are allowed to continue to walk normally and if while walking, a pedestrian breaks some of the barrels, he is not liable. The reason the Gemara gives is because in this type of situation one is allowed to take the law into his own hands and does not need to go to beis din and ask them to force the owner to remove his barrels.
Moreover, we see from the Gemara (see for example, the Maharam Lublin on this Gemara) that even if the person who broke the barrels would not have suffered any monetary loss if he had not walked there, nevertheless, he has the right to walk through and he bears no liability for the damage.
Thus, we see that restricting a person’s freedom of movement is considered to be damaging him and beis din would force the one who is restricting a person’s freedom to free his victim from the restriction.
However, the case of the Gemara is different from your situation because in the case of the Gemara the person placed his barrels in the public thoroughfare illegally, whereas in your situation the owners did not do anything improper. It was just that due to circumstances beyond their control, their property ended-up preventing you from leaving the elevator. Therefore, we must consider whether this difference affects the law in this situation.
It does not and the reason is that we see in the Gemara that even if what originally transpired was beyond the owner’s control, the owner is liable for the ensuing damages if he could have done something to prevent the damages. Thus, for example, the Ramo (CM 416) rules that if a person’s tree fell unexpectedly, while the owner is not liable for the damages done when it fell, he is liable for any damage that results from his failure to remove the tree, if he did not relinquish ownership once the tree fell. Similarly, the SA rules (411, 2) that if an unusually strong wind hurled a person’s object to the ground, the owner is liable for subsequent damages if he did not relinquish ownership.
Therefore, since the elevator belongs to the building, the fact that the breakdown was due to circumstances that were beyond the owners’ control, does not free the owners from responsibility for future damages since their property was preventing you from leaving. Therefore, it certainly was incumbent upon the owners of the elevator to call someone to free you from the elevator.
There is still an issue as to whether they were obligated to do so immediately or if they could argue that they could have waited until the morning in order to avoid the added expense.
We see that the fact that it is night frees a person from his obligation to prevent damage in Tosafos (BK 55B). Tosafos, whose opinion is ruled by the SA (396, 2), explain the Mishna to mean that even if a person becomes aware at night that the wall of his corral broke, he may wait until the morning to repair it even though during the night without the wall, his animals will be free to run out and damage others. Even if, as a result his animals do go out and damage other people’s property, he is not liable.
However, for two reasons your situation is different. First, as pointed out by the Shimru Mishpot (1, 119), the Gemoro only freed someone from taking action at night to act to prevent possible future damage, whereas in your situation the building’s owners were already damaging you. Thus, this is not a source that one is allowed to fail to act at night to stop damage from continuing.
Second, the Tur (CM 396) writes that the reason the owner of the corral was not required to repair the wall at night is because he was considered an oness since it was dangerous to travel at night and as a result people normally refrained from traveling at night. The Chazon Ish (BK 8, 10) explains that the principle on which the Tosafos is based is the rule that one is only required to watch over his property in what is considered the “normal” manner, and then it was not normal to travel at night.
However, today people do travel at night and a repairman was available to repair the elevator immediately. The only possible reason to consider it an oness is the extra cost.
Based on this explanation of the Chazon Ish, we can argue that the building was required to repair the elevator immediately since one cannot consider it normal behavior to keep people stuck in an elevator for hours, especially at night, only in order to save two hundred-fifty dollars.
The Shimru Mishpot discussed a similar situation. In his case a store’s burglar alarm accidentally went off in the middle of the night disturbing the sleep of the neighbors. A neighbor called the store owner who lived in a different section of the city to come and shut the alarm. When the store owner callously replied that he will do so in the morning, the neighbor told him that they will break into the store and shut the alarm and he did so. The Shimru Mishpot ruled that the neighbor acted properly and did not have to pay for the damages since the store owner acted improperly and one is allowed to take the law into his own hands to prevent himself from being damaged.
A very enlightening source that is important for our issue and also discusses a burglar alarm that went off in the middle of the night is a shiur (published in Otzar Hamishpot 1, page 13) of Rav Moshe Mordechai Farbstein. In the situation he discussed, the neighbors could not locate the store owner and one of them broke the alarm even though the owner was blameless. Rav Farbstein argues an important principle governing the right of a victim to take the law into his own hands, even when the owner of the damaging object is blameless. Often the critical issue is how much damage the victim is allowed do in order to save himself from being damaged.
Rav Farbstein proves that the right that a person has to take the law into his own hands can be characterized as the right to protect one’s self or property. If, even in light of the expense, the act can still be considered an act of protection of his property, the victim may eliminate the threat in order to avoid being damaged. However, if for example, a person shot an ox in order to prevent it from breaking a simple glass cup, he is liable for the damages since one could not call that an act of defense.
This gives us an important criterion for determining at what price the elevator owners could have asked you to pay. For example, if the extra charge were three thousand dollars it is possible that the owners of the elevator could have asked you to pay part of the extra cost since many people would remain in the elevator if it were their own and not pay three thousand extra dollars.
We should note that in any case the owners of the elevator are not liable for any lost income that you would have suffered as a result of being stuck in their elevator, even if they failed to act, since these are only causative damages. This is ruled by the Rosh (BK 8, 3) when A went into a pit and then B removed the ladder, forcing A to remain in the pit and not earn money. He rules that B does not have to pay since he only caused A to lose potential income.
However, that is after the fact but your issue concerned the present, specifically whether the owners were required to act in order to release you from captivity in their elevator and they acted properly by promptly releasing you.
In conclusion: The owners were obligated to pay the additional two hundred-fifty dollars in order to free you from their elevator immediately. Therefore, their claim that you are required to reimburse them is unjustified. The source that they cited is not relevant.
