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When someone uses another's property without explicit rental agreement, does implied permission create a rental obligation? The shiur analyzes a dispute between the Rashba and Rishonim regarding whether "ze nehene v'ze chaser" (one benefits and one loses) creates an enforceable sechirus. The key turns on whether the owner's mindset is business-oriented or not.
This shiur on Bava Kamma 20a examines the Gemara (גמרא)'s question of when using someone else's property creates a rental obligation versus when it is considered a gift. The Mishkenot Ya'akov brings a ruling from the Rama that when someone tells another person to stay in his house, there is no assumption of rental payment. This is based on the Rashba who compares it to a case where someone supports another's wife—we don't assume expenditures are gifts but rather loans. Similarly, when someone allows use of property that has rental value, we don't assume it's for free, but rather for payment. The Mishkenot Ya'akov asks a fundamental question: the Rashba's case seems to be about property that the owner charges for (chatzer hakaim l'agra), where the kal v'chomer is that if entering without permission requires no payment, then certainly entering with permission requires no payment. But the Rama rules that even in chatzer hakaim l'agra, stam batim of our times have rental value—if the owner gives permission, there's no assumption of creating a rental agreement. Why doesn't the Rashba's reasoning apply—that just as we don't assume monetary gifts, we should assume rental payment is intended?
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Bava Kamma 20a
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