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Project Fellow Weekly -  Issue 227         

WHAT'S THE LAW 

  

 

 
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Space Savers I
  • A G parked on a free city spot. He pulls out and puts a chair in the spot with the hope that people will respect that he worked so hard to clear the space, and as a result not park in there. A G hopes to return in nine hours after work and park again in that spot. Shortly thereafter, B A  drive by. May B A park in the spot?

What is the Law?
Please email us with your comments, questions, and answers at [email protected]

Space Savers II

 

 May you park in between two spots to save one for your married children?

  

 

 

What is the Law?
Please email us with your comments, questions, and answers at [email protected]

 
Space Savers II

The Answer:


As long as doing so does not run counter to local civic law or custom and the Space Saver does not cause a Chillul Hashem by his/her behavior, doing so is permissible.

We will arrive at this ruling through four different approaches.

(According to one approach though, it is better if B would pay A to do so.)


 


Detailed Explanation

Space Savers II invokes the following Halachos.

Outline:

I
[A - C follows the approach that we took in the previous issues when we discussed saving a spot you dug out for yourself from the snow and would follow an understanding based on a Responsum from my Rebbi Rav Chaim Yisroel Belsky zt"l]

A- A may acquire an object available for anyone to take - a davar shel hefker - on B's behalf, even if by doing so it will prevent others from gaining.

B- Sha"ch and Ketzos permit Creditor A to grab for a Creditor B even beyond A's rightful share - from a debtor with limited funds even at the expense of fellow creditors. [Though Nesivos forbids it.]

C- Sha"ch and Korban Nesanel permit A to grab for Creditor B at the expense of other creditors even if A is not a creditor in his/her own right, if B hires A to work on B's behalf.


II My Rebbi Dayan Chaim Kohn Shlita 
 
D- In a modern city structure, no other car owner is considered a creditor who can interfere with your ability to use the spot and save it for someone else in accordance with civic law [Dayan Chaim Kohn].


Approaches A - C
Background

We will first highlight some differences between

I
a shliach(an unpaid agent)

II a paid employee (po'el)

III a self-declared volunteer (tofes)

Then, we will raise two dilemmas and identify circumstances under which the three can function to benefit one person at the expense of someone else.

I Shliach

A may generally appoint B as an "unpaid agent" or shliach to perform a legal act whereby its result will be attributed to A
[Choshen Mishpat 182].  
Note: Agency is affected by A appointing B to execute the task. A may choose to appoint B to affect a beneficial result or a detrimental result on A's behalf.

Limitations:

To affect agency; both A and B
must have the requisite legal mental capacity (usually beginning at the Halachic age of an adult: 12 for females, 13 for males) [Choshen Mishpat 188: 2].

Generally, albeit with exceptions, if A appoints B as an agent to perform an act which is a sin for B to do, the result is not legally attributed to A
[Choshen Mishpat 182].

II Po'el

Let's Contrast an unpaid agent with an employee:

A may hire B
to perform a legal act whereby its result will be attributed to A.
In addition to the result; the actions of an employee or like the actions of the employer.

As such, according to Nesivos HaMishpat, an employee may perform an act of acquisition, like lifting an object (hagba'ha) or using the object (chazaka), even if the employee does not have the
requisite legal mental capacity to generally perform legal actions.

However, the domain of an employee is not like the domain of the employer.

Thus, an employee (B) who does not have the
requisite legal mental capacity to perform legal actions, cannot perform means of acquisition like pulling the object into (B)'s domain (meshicha) on A's
behalf [Nesivos HaMishpat 188: 1].

If A hires B to perform an
act which is a sin for B to do, is the result is legally attributed to A?
No
[Choshen Mishpat Pischei Teshuva 182: 2, Maharshal 182: 2]



III
Self- Declared Volunteer - תופס לבעל חוב

Even without having been expressly appointed as an agent, generally, A may decide to become a
Self- Declared Volunteer and unilaterally benefit B by acquiring an owner-less object on B's behalf [Choshen Mishpat 269: 1] see exceptions below.

Examples include
1) If A finds an owner-less object - that is an object which anyone has a right to take for himself/herself, - A can unilaterally decide to pick it up on behalf of
B - and it works!
[Choshen Mishpat 269: 1] .

2)  A owes $100 to B. Were a phenomenon to exist where A is at risk of losing his/her money soon whereby B is at jeopardy of never getting paid, B may grab $100 from A for himself/herself (provided that A agrees that he/she owes B. Similarly, C may unilaterally decide to grab $100 from A for B, even without B appointing C to do so
[Choshen Mishpat 105: 4].

Exceptions:

The ability to voluntarily acquire an owner-less object on behalf of another becomes severely limited if doing so directly causes others a loss. This happens when others have an otherwise legitimate claim to the object as well.

When the Self- Declared Volunteer has the ability to acquire the owner-less object himself/herself the Self- Declared Volunteer can do so on behalf of his/her fellow even when doing so directly causes others a loss.

Otherwise, the Self- Declared Volunteer cannot act with "vigilantism" and acquire the object for his/her friend while directly causing others a loss [Pischei Teshuva C.M. 105: 3].

Examples:

A owes B, C, D, E, & F $100 each. A has $200 presently available. First come first serve.

Since B may claim $100 for himself/herself he/she may choose to claim $100 for either C, D, E, or F.

However, "G" who has no claim to any $100 may not choose to act on behalf of B, C, D, E, or F; as benefiting one causes the others a loss.

Moreover; B, C, D, E, or F; may not even appoint G as an unpaid agent, a shliach to grab $100 on any one of their behalf, whereby doing so would directly cause the other creditors a loss.

(Merely preventing others from gaining, like when A picks up an owner-less find on B's behalf is very different than A causing another creditor a loss by being a vigilante and grabbing the entire $100 for B, at C's expense).

Dilemma 1
What if A owes B $100 and owes C $200. May B take $200 for C?

On one hand
B has a right to act, on the other hand, isn't his right limited to $100?

Sm"a
, Nesivos: No. B may only "gift" to C up to the $100 that A owes B
[Choshen Mishpat 105: 3]. 
 
One Creditor grabbing more than his/her share for a fellow Creditor
Yes
No
Sha"ch
Sm"a
Ketzos
Nesivos

Shach, Ketzos HaChoshen
: Yes. Since B has a right to grab for himself/herself, B can act on C's behalf even beyond B's own stake in the pie [Choshen Mishpat 105: 2].
 

Dilemma 2:
A Paid Vigilante at the Expense of other Creditors

May,
B, C, D, E, or F; hire G to grab $100 on any one of their behalf, if doing so would directly cause the other creditors a loss?

A Paid Vigilante at the Expense of other Creditors
Yes
No
Sha"ch
Tumim
Korban Nesanel
Nesivos

Sha"ch
maintains yes. A po'el functions like an extension of the boss [Choshen Mishpat 105: 1].

Korban Nesanel
maintains yes. G now has sufficient stake in the game to allow him/her to act on the remaining creditors expense.

Nesivos [Choshen Mishpat 105: 2], Tumim maintain no. Only one who has a right to grab for himself can act on behalf of one on the remaining creditors expense].

(All agree though, that A the debtor - may enlist G to acquire $100 for B, C, D, E, or F) [Ketzos HaChoshen 105: 3].

***

Approach D

A
can prohibit B from benefiting from A's property.

Similarly, A can prohibit B from benefiting from A's partnership in a property
[Yoreh Deah 224: 1].

Examples theoretically include the shared space in condominiums, planned neighborhoods or gated communities. In Talmudic times, many small towns were run like gated communities whereby each citizen owned a significant percentage of the shared municipal property
.

Then there were properties that were completely public; belonging to everyone - yet no-one specifically can claim anything significant; like the Temple Mt., water wells dug along the roads leading to Jerusalem which provided drinking water for the pilgrims en route to the Temple.

A
's degree of ownership thereof is so minute that A has no ability to "forbid B" to benefit from A's "portion" of the public well [Rambam Peirush Hamishnayos Nedarim 5:4].

Dayan Chaim Kohn
Shlita rules that our modern cities are similar to the public wells of yore.  

Barring local law and custom, one citizen cannot forbid others from benefiting from a specific area of the city.

Ramifications of this ruling include but are not limited to:

1) Ani Hamenakef b'rosh Hazayis (see next section below from last week).

Normally, if A extends significant effort, puts his/her life in somewhat of a danger or spends significant resources to obtain an article, position, or usage of a property, B is forbidden to interfere with A's efforts and take the article, position or property for himself/herself as long as A is still interested in it.

According to my Rebbi Dayan Kohn Shlita, while A can lay claim on owner-less property, A cannot lay such claim on modern city property. Dayan Kohn maintains that the theorem of Ani Hamenakef b'rosh Hazayis would not support a claim to a spot you worked hard to dig out from the snow.

Note: In Issue 227, we argued that the theorem of Ani Hamenakef b'rosh Hazayis would support a claim to a spot you worked hard to dig out from the snow. This is in accordance with a Responsum from my Rebbi Rav Chaim Yisroel Belsky, Zt"l.

2) Tofes leba'al chov b'makom shechav le'acherim

Normally, A's ability to reserve an opportunity of which B has a right towards, has limitations, if reserving it for B would be at C's expense. In other words, C's right towards the article poses limitations on A's abilities to acquire it.

According to Dayan Kohn, when the article/land of contention is of modern city property, meaning that it belongs to everyone and no-one, C's right to use it is not a significant enough degree of "right of usage/ownership" to pose limitations on A's ability to reserve the spot for B.

As such, as long as there is no local law or accepted custom against such activity and doing so will not cause a Chillul Hashem, A may reserve a spot for B by taking up two spots.
 
Application:

How do we view the right to park in a free municipal parking zone?

* If we view it as though the space were like a "find" - a davar shel hefker - available to anyone who wishes to take it for his/her use, then just like A may pick up a find for B, A may save B a spot even if by doing so, A will be preventing others from attaining it. A is not causing the other car owners a loss. A is simply preventing them from gaining.

* If we view it as though every car owner has a claim to a spot, similar to numerous creditors against a debtor with limited funds, A may obviously park his/her own car in a spot for himself/herself.

As A has a right to a spot, according to Sha"ch and Ketzos, A would be permitted to save a spot for B as well as saving for himself/herself, at the expense of others, even though by doing so, A is grabbing more than his/share.

And if B would even pay A for the service, we would have additional premise (Sh"ach and Korban Nesanel) to permit it.

* Now, if someone were to argue that the Nesivos might still forbid A to save an additional spot for B at the expense of other car owners who have a legitimate claim to the spots, and according to the Nesivos, B paying A for doing so does not improve the situation, Dayan Kohn would still permit saving a spot for your married children by "parking in two spots" because in truth, the availability to use parking spots is not considered a davar shel hefker, it is owned by everyone but no-one and no car owner is considered the City's creditor whereby he/she could interfere with any other driver grabbing a spot for a friend as long as such behavior complies with local municipal law and custom.

In terms of earning claim to a spot for working hard to dig it out from the snow, my Rebbi Rav Belsky zt"l maintains that the efforts earn you a claim, while my Rebbi Dayan Chaim Kohn maintains that the efforts do not earn you a claim to the spot.

Nevertheless, Dayan Kohn, like Rav Belsky writes that in a locale like in Chicago where the public expects you to respect people's efforts, it would be a Chillul Hashem to ignore the digger's efforts.

Of course, all of this is true only if such behavior complies with local accepted custom and does not create a Chillul Hashem.



 
Space Savers I

The Answer:

It Depends upon the Neighborhood. See Detailed Explanation
Note: This is last week's answer which is in accordance with Rav Belsky's Psak.
 
Detailed Explanation
Space Savers I can invoke the following Halachos.

Ani Hamenakef B'rosh Hazayis

[Note: This is more stringent level than a standard Ani Hamehapech: the regular laws of Tortious Interference we discussed above]

A poor man who risks his life to climb a tree and shake down the olives for himself. The olives fall down below. One may not pass under the tree and take them even if there are no other olives available
[Mishna Gittin 5:8 ].

1.            When A has extended extreme levels of effort, it is forbidden to interfere with A's pursuit even if no alternative exists.

2.            There could be three different classifications of "extreme measures of effort" [Nachlas Tzvi Choshen Mishpat 237]

a)    "A" has slightly endangered his/her life with the pursuit thereof [Sh"ut Maharshal 36].

b)   "A" overcame great obstacles and is sure to obtain the article etc. barring unforeseen interferences [Mas'as Binyamin 27].

c)     "A" invested significant resources in his/her pursuit thereof. [Maharik].

Thus, if B encounters a phenomenon whereby A either slightly endangered his/her life in the pursuit thereof, overcame great obstacles and/or as a result of his/her pursuit is rationally fairly certain that he/she will obtain the pursued opportunity, B must not interfere with A's pursuit.


Application
Digging out a spot for two hours in the frigid winter definitely meets the criterion of overcoming great obstacles, at times investing significant resources and even endangering one's life at times, so really B should respect A's efforts in digging out a spot for himself and not park in the spot A dug out even if other spots are hard to come by.

But does A rationally rely that when he/she returns after work that he/she will find the spot still empty?

That depends on the type of neighborhood...

So in a neighborhood where it is not irrational for A to assume that people will respect his/her efforts, it is forbidden for B to take the spot (provided that local civic enforced laws allow Space Saving).

In a neighborhood in which it is not so rational to assume that the spot will still be available, B should still not be permitted to interfere and not allow A to fill it later, because A still risked his/her life to obtain it and/or invested significant resources to free the spot.

However, there is another reason why A would be permitted to park in the spot that B dug out in a neighborhood where it is not so rational for A to assume that the spot will be empty upon his/her return.

What will be if B respects A's efforts and desists from parking in the spot? Will A still get it? No!

Because, someone else not bound by the Torah's laws will fill it instead!

In such a situation, we will allow B to fill the spot. The purpose for B not to park there is so that A should reap the benefits of his/her toil.

If A is not going to get it anyway - what virtue is there in not parking there and allowing someone not bound by the Torah's code to fill it instead [MaHarshdam].

Another Consideration:

If there is a possibility that parking in that spot will create a Chillul Hashem, it is categorically forbidden to park there.

Note:
There are in fact customs in various cities regarding what they call "Space Savers".
In Boston after the Blizzard of 2015: Mayor Walsh announced:
Mayor Walsh says if you spend 10 hours shoveling out your parking space, its yours for a couple days. #blizzardof2015
Thus, in Boston 2015 one would be required to respect the space saver's attempt.

However; The Campridge Police had something else to say:
@pbugbee Space savers are illegal in Cambridge. @CambridgeDPW will confiscate any space savers.

... So before you act: Know your Halacha as well as Local Expectations




Note:
 
Although we aim to present the correct ruling, varying details are always important and decisively influence every individual case. Our readers are thus encouraged to present their personal cases to a competent authority and not solely rely on the information provided.  

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