Question
I live in Eretz Yisroael in a totally religious community. When the municipality measured the size of the apartments in our building, they inadvertently included a part of my neighbor's apartment in my apartment. As a result, I was charged real estate tax on a portion of my neighbor's apartment. Now, after ten years, the municipality realized their mistake and rectified the situation. When I asked the municipality to refund the taxes that they overcharged me, they refused claiming that after two years they don't refund money. On the basis of this rule, they also will not charge my neighbor for the taxes that he did not pay. I then approached my neighbor to pay me which he likewise refused claiming that he asked a Rov who told him that he doesn't owe me any money. Is that correct?
Answer
A situation is discussed in SA (128, 2) that is similar to yours. Based on a section of the Yerushalmi (BK 10, 6) that is cited by many Rishonim (Rif Kesubos 63B, Rosh Kesubos (13, 8) and others), the SA rules that in general if gentiles took A's money to pay B's debt, B is not obligated to reimburse A. The Meforshim question this ruling because B benefited from A's loss, and the rule is that if one benefits at another's expense, he is obligated to pay for the benefit he received.
The Sema (128, 6) addresses this question. He answers that since A did not pay voluntarily, B is not obligated to reimburse him. The Nesivos (128, 5), based on an answer of Tosafos (BK 101A) that is ruled by the Shach (391, 2), explains the rationale for the Sema's answer.
The principle derived from this Tosafos is that there are only two situations where a beneficiary is required to reimburse his benefactor. One case is if the benefactor gave him the benefit intentionally. In this case the benefactor has the status of a yoreid and is entitled to the amount that one must pay a yoreid. The second case where the beneficiary must pay is if either he or his animal took the benefit actively. (This is based on the Gemara BK 58A.)
However, in this case a third party – namely gentiles – used A's money to benefit B. Since A did not willingly do anything to benefit B, nor did B act to derive any benefit from A, there are no grounds to obligate B to reimburse A for the benefit that he received.
In the Mishpatei Yosher (volume 2 page 175. The sefer recently became available in the U.S., distributed by Z. Berman.) we used this principle to decide a situation where a minor used A's fire extinguisher to extinguish B's fire. We ruled that if B did not himself have a fire extinguisher (later we will see why this is important) he is not obligated to pay A, even though his house was saved because the minor used A's fire extinguisher. The reason is because A did not himself do anything to benefit B and B did not himself use the fire extinguisher.
We should note that this ruling of Tosafos and the Shach applies specifically to the obligation to pay for benefits. However, there may be another reason to require your neighbor to reimburse you for your expense.
The source for this obligation is a Gemara in Chulin (131A). The Gemara rules that if a person owed money to the royal authorities who then confiscated his field (with its produce) to secure payment of his debt, the owner of the confiscated field must give the value of the tithe (ma'aser) of the crop to Levi'im. Many meforshim, including Tosafos (ibid), understand that the reason he must pay the Levi'im is because when the authorities confiscated his field they included the value of the tithe in his assets. Thus, the owner of the confiscated crop used the tithe as payment for his debt since he saved that amount of money. Since the tithe actually belonged to the Levi'im, and he used the tithe to save money that he otherwise would have been obligated to pay to the authorities, he must reimburse the Levi'im for these savings according to these meforshim. According to these meforshim one who saves money at another person's expense must reimburse his benefactor for his savings. This payment is known as mishtarshi lei.
Some Acharonim question why the beneficiary is obligated to pay his benefactor since he did not take the benefit himself and the benefactor did not give him the benefit. Rav Shimon (Sha'arei Yosher 3, 25 beg word venereh la'aniyus da'ati) and the Ohr Someach (Nizkei Momon chapter 3) answer that the rule that the beneficiary is only obligated to pay his benefactor if either the beneficiary took the benefit himself or the benefactor gave him the benefit does not apply to benefits that are classified as mishtarshei lei. The reason is because the proper understanding of this obligation is that if A saved money at B's expense, we view A's savings as belonging to B since A only retained ownership because of B's expense.
For example, in the case of the fire extinguisher, if B had his own fire extinguisher, B would have to reimburse A for his savings since the minor's use of A's fire extinguisher spared B from using the contents of his fire extinguisher.
The Nesivos also seems to have understood like these meforshim. (The Meluei Mishpot note 87 also understood the Nesivos in this manner.). As a result, he (ibid and Mekor Chaim 441, 3) questions why, in the case where gentiles took A's money to pay B's debt, B does not have to reimburse A, since B's money was saved because of A's money. He answers that the reason is because it is possible that B would have freed himself from his obligation in some other manner.
Based on this answer, he rules that if gentiles took A's money when it was on B's property, B does owe A the money that the gentiles took, because he could not claim that he would have avoided paying. Since the gentiles took A's money when it was by B, B clearly was not able to avoid paying the money. It seems that in your case if your neighbor paid his real estate tax in full he has to reimburse you because it is clear that he did not have any way to free himself from paying his real estate tax.
We should note that there are other meforshim who disagree with the approach of the Nesivos, Rav Shimon and the Ohr Someach. For example, the Beis Shlomo (CM 123) disagrees with these meforshim. He understands that the reason the one whose field was confiscated must pay the Levi'im his tithe is because when he obligated himself to pay the royal treasury, he took an action which eventually caused him to derive benefit from the Levi'im since his action caused the confiscation of his field. According to this approach the reason he is obligated to pay is not because he saved money but because he took a benefit from the Levi'im.
The Beis Shlomo also has a different explanation for why, when gentiles take money from A to pay B's debt, B does not have to reimburse A. He brings the Ramban's explanation (cited by Sefer Haterumos 70, 2) that since the gentiles acted in an unusual manner in taking A's money, we don't associate B's saving with A's loss. Rather, we view B's saving and A's loss as if they were two unrelated transactions. Since A suffered an unusual loss, we view A's loss as act of Hashem and determine, based on hindsight, that he was destined by Hashem to lose the money that the gentiles took from him. Only in a case like the Gemara in Chulin where the gentiles took the Levi'im's part of the crop along with the owner's portion, which is a natural occurrence since the Levi'im's portion was mixed together with the portion that belonged to the owner of the crop, the owner of the crop needs to reimburse the Levi'im because his debt was reduced by the value of the Levi'im's portion.
If one follows this explanation, your neighbor does not have to reimburse you because it is not a normal occurrence for the authorities to charge a person for his neighbor's tax. Therefore, we view your loss as an act of Hashem that somehow you deserved and do not associate it with your neighbor's saving.
The Minchas Pitim (siman 128) and Nachal Yitzchok (111 in the note) offer a third explanation for the Gemara's ruling in the case of the confiscated field. They understand that the reason the owner of the crop must pay the Levi'im for the value of the tithe is that the obligation to give a tithe to the Levi'im is a personal obligation of the owner of the crop. Therefore, he remains obligated to give the Levi'im the tithe even though the gentiles took away his crop.
If one follows this approach, the case of the confiscated field will again will not serve as a source to obligate your neighbor to reimburse you because the use of the Levi'im's portion did not create an obligation on the owner to pay the Levi'im but rather the owner's previous obligation only remained. Since your neighbor had no obligation to you, this will not apply in your situation.
There is one more case in the Gemara (BM 42B) where the Gemara discusses a situation where a person saved money at another person's expense. In this case a person told his worker to take his barley in order to produce beer for him. By mistake the worker took barley that the owner of the beer was watching for someone else. The Gemara says that if the beer that was produced was marketable, the owner of the beer must pay the owner of the barley for his barley since his own barley was saved.
Thus, even though the owner of the beer did not take the barley and the owner of the barley did not put his barley into the beer, nevertheless, the owner of the beer must pay for the barley. This may serve as proof for the position of the Nesivos, Rav Shimon and Ohr Someach.
However, there are other poskim who address this question and they give other answers to this question. For example, the Sha'ar Mishpot (291, 4) and Divrei Mishpot (291, 6) answer that the reason the owner of the beer is liable is because he was a shomer, a watchman, over the other person's barley and a watchman has added liability. Other answers are also given.
From the fact that these poskim do not answer like Rav Shimon and the Ohr Someach we see that they maintain that even when one gains or saves money at another person's expense, he is only liable if either he took the benefit or the benefactor gave him the benefit. Therefore, also according to their position you cannot collect from your neighbor the taxes that he wasn't charged.
In conclusion: According to the Nesivos your neighbor owes you the money you paid. However, according to the Beis Shlomo, Minchas Pitim, Sha'ar Mishpot and Divrei Mishpot he does not owe you this money. Therefore, beis din will not make your neighbor pay you the money.
