Mishpatim-Should Beis Din Award a Plaintiff More Than He Claimed

Question

In the previous two articles you discussed the case of a landlord who refused to heed the request of his tenant (a single woman) to return the head checks she had given as rental payments after he rented the adjacent apartment to Arab foreign workers. You ruled that the tenant was entitled to a discount in the rent and that the landlord is obligated to reimburse her for the difference between what she paid and what she should have paid, given that the neighboring apartment was occupied by Arabs, whom she legitimately feared. However, the tenant only asked for other money but did not request to be reimbursed for the overpayment of her rent. What should beis din do? On the one hand she is entitled to the money but on the other hand she never asked for the money and maybe beis din is not allowed to assist one side in a din Torah.

Answer

There is a ruling of the Ramo (17, 12) that seems to address your question and by studying the basis for this ruling and the commentaries on the Ramo we will work on an answer.

The Ramo's ruling is, "If a plaintiff petitioned for a small amount and the dayan realizes that he is entitled to a larger amount, the dayan may not award more than the amount that the plaintiff sued for. Moreover, if the dayan did award more than the amount requested, the ruling is an error and the additional amount must be returned."

The Ramo in the Darkei Moshe cites two sources for his ruling: a section of the Gemara and a responsum of the Rivosh (227). The Gemara (BB 5A) is an anecdote concerning Raveno, an amora, who had a monetary claim against his neighbor, Runyo. Runyo's property was surrounded on all four sides by Raveno's property.  Raveno built a wall that surrounded Runyo's property as well as his own, thereby benefiting Runyo.

Prior to coming to a din Torah, Raveno first asked Runyo to pay what he owed according to the halachah, which is a percentage of Raveno's expense. When Runyo refused, Raveno asked for smaller and smaller amounts, finally ending by asking Runyo to pay the cost of a watchman (who could be hired to achieve the same thing as the wall but at a much lower cost), in the hope that Runyo would at least pay something. When this attempt failed as well, Raveno brought the case to Rovo for a ruling.

Rovo advised Runyo to pay the smallest amount that Raveno requested, i.e., the cost of a watchman, and added that if Runyo fails to comply he will rule that Runyo must pay the full amount namely a percentage of Raveno's cost.

The Ramo understood that the reason Rovo did not immediately rule that Runyo must pay the full amount that he was halachically obligated to pay, is because Raveno asked for a smaller amount. Based on his understanding, the Ramo deduced his ruling that it is prohibited for a dayan to award a plaintiff more than the amount he claims.

The commentaries to the SA question the Ramo's ruling. If a person owes money, why should it be forbidden for beis din to obligate him to pay, just because the plaintiff did not petition for the money? Since actions that are based on an error are ineffective, if due to an error a plaintiff failed to make a claim why must beis din ignore the claim? This is especially difficult because based on the pasuk (Mishlei 31, 8), "Open your mouth for someone who can't speak," the Gemara rules in several places that beis din can suggest a claim on behalf of a plaintiff who neglects to make the claim.

For example, the Gemara (Gittin 37B) rules that if a lender who wishes to collect a debt after Shmitto fails to produce a pruzbul, a document that he needs in order to collect his debt, beis din asks the lender if he has a pruzbul, thereby suggesting that he respond that he originally wrote a pruzbul.

The Shach (17, 15) agrees with the Ramo's ruling. He explains that the Ramo agrees that if someone fails to maximize his claim due to ignorance, beis din will grant him what is rightfully his since he did not intend to waive any claim. What the Ramo is ruling is only that if beis din is uncertain why the plaintiff neglected to maximize his claim and it is possible that he intended to waive a portion of what he was entitled to, then beis din does not grant the plaintiff more than he requested since it is possible that he really intended to waive part of his possible claim. When in doubt beis din does not rule that one must pay.

The Tumim (note 8) agrees with the Shach and therefore rules (Urim 28) that if the plaintiff is not knowledgeable in Torah law, beis din will grant him the entire amount to which he is entitled, since we assume that his failure to claim the full amount stems from ignorance and was not intentional.

The Me'il Tsedoko (res. 53) also follows the approach of the Shach and goes even further than the Tumim. He maintains that only if the plaintiff was a talmid chochom like Raveno, who certainly was aware of his halachic rights, do we assume that his failure to make a full claim indicates waiver of a claim. For any other person we assume that his failure to make a full claim stems from ignorance, and beis din should grant him all that he is entitled to even if he does not make that claim.

The Ketsos (note 3) addresses the proof that the Ramo brought from the Rivosh. He attributes the Rivosh's ruling to his unique approach to waivers that are based on an error. The Rivosh in a different responsum (res 335) understands the Gemara (BM 66B) as ruling that if a person waves a claim because of a halachic error the waver is valid in spite of the fact that it was made in error. Only if the waiver is based on a factual error, is it ineffective. Since the consensus approach is not like this position of the Rivosh, according to the Ketsos even if a plaintiff fails to make a claim due to a halachic error beis din will make the claim on his behalf.

The Nesivos (note 1) suggests an approach that explains Rovo's ruling in a manner that his ruling conforms with the principle that waivers based on an error are invalid. His approach is that if due to the plaintiff's error the defendant will receive money or an item that is not his, then beis din rules that the defendant must pay everything he owes, even if the plaintiff did not request the entire amount. It is only in a case that is similar to Raveno's, where Runyo's failure to pay the higher amount did not result in Runyo's keeping money that is not his, that beis din will not rule that he must pay the full amount.

The reason Runyo would not have held something that is not his is because if Runyo had paid a percentage of Raveno's cost, then he would have become a partner with Raveno in the wall. Raveno was entitled to demand this. However, if he only pays the cost of a watchman, as Raveno requested and Rovo ruled, he does not become an owner of the wall at all, but merely pays for the benefit he derives from the wall that belongs to Raveno.

This explains Rovo's ruling very smoothly. Rovo advised Runyo that since Raveno was willing to allow Runyo to just pay for the day-to-day savings that he derived from the wall, he should take advantage of the offer since Raveno was really entitled to demand that Runyo acquire and pay for his share of the wall.

All the explanations that we cited are in opposition to the Sema (17, 15). The Sema understood the Ramo to mean simply that beis din does not grant a plaintiff more than what he claims. The Sema agrees with this ruling. The basis for his approach is that he understood the Gemara to mean that Rovo was unaware that Raveno knew that Runyo was obligated to pay his share in the cost of the wall, and yet Rovo still did not grant Raveno more than what he asked.

However, the Kapos Temorim (Succo 34B) proves that Tosafos and the Ran did not understand the Gemara this way. They understood that Rovo was aware of Raveno's earlier request for a larger payment. Therefore, the Kapos Temorim rules that if the plaintiff's waiver is based on ignorance, beis din should award the plaintiff all that he is entitled to. He clarifies that beis din may not suggest to a plaintiff, factual claims that would enhance his position but perhaps are not true. However, if, based on the facts related by the plaintiff, he is owed more than the amount he petitions for, beis din should award the plaintiff the entire amount that he is entitled to. The approach of the Kapos Temorim is cited by the Chasam Sofer (notes to CM 17 and BB 5A) who explicitly rules that this is the authoritative approach.

Returning to the case under discussion where the lady renter neglected to ask for a return of the rental payment that she made, according to the Shach, Tumim, Ketsos, Nesivos, Me'il Tsedoko, Kapos Temorim and Chasam Sofer, beis din should award her a refund of part of her rent. Moreover, it is possible that even the Sema would agree in this case that beis din should award her a reduction in rent because both parties agree that she asked for her checks back but was incorrectly refused by the landlord. As a result, when the landlord deposited the checks for the full amount against her will, he was taking money that he was not entitled to. Thus, he owes her the excessive amount of money that he took. Furthermore, it is obvious that she did not intend to waive any debt of the landlord since in a different dispute related to her rental she refused to pay a much smaller amount that she owed the landlord.

In conclusion: Beis din should award the tenant the amount that she overpaid since certainly that is the consensus opinion and perhaps the only opinion. Moreover, even if the Sema (and Bach who has a similar approach) disagrees in this case, since beis din can make compromises and also can award money based on yosher (correct behavior) and the landlord's behavior was not correct and totally improper, it is proper for beis din to rule that the landlord must return to the renter the amount which she overpaid.