<div dir="ltr">It seems to me many people are giving thrir opinion without sources or general statements like it is clear from the gemara or SA etc. I note that the encylopeia tamudit has a long article in the case over 100 columns.<div>
Another extensive discussion appears in <a href="http://www.rambish.org.il/journals/a/avnei_mishpat/vol011/avm01113.pdf">http://www.rambish.org.il/journals/a/avnei_mishpat/vol011/avm01113.pdf</a><br><div><br></div><div>Indeed this sugya is full of disagreements on all levels.</div>
<div>I shall attemot to bring sources (which disagree with much of what has been claimed)</div><div><br></div><div>The origin is Baba Metzia 71a. The gemara says that if the field is not rented that "yado al hatachtona" while if it is rented then "yado al haelyana" . There is a disagreement between Ramban and Baal Hamaor exactly what "yado haelyana" means, ie what level of wages is he entitled to.</div>
<div><br></div><div>The mor relevant question for our discussion is what happens when the the land owner says he is not interested in the improvement and the outsider should remove it. It seems to be accepted that if to begin with the owner says that he doesnt want the improvement that the "yored" s not entitled to anything. Similarly ifd the field is not meant for planting than the owner can demand that the "yored" remove everything and not be paid.</div>
<div><br></div><div>If the field is meant for planting then Rav Hai Gaon and Baal Hamaor, hold that the owner has no right to demand that the yored undo his work. Rif, disagrees and says he has such a right. </div><div>Ramban and Rashba say that this applies only in a field not meant for planting while Rosh says that the owner can make thios claim even in a field meant for planting.</div>
<div>SA paskens like the Rosh (CM 375:1) . </div><div>According to this opinion both sides have the right to undo the improvement and so it is not clear how the payment should be made as both sides have bargaining chips. Thus in practice the level of payment will result from bargaining of the two sides.</div>
<div><br></div><div>What happens if the work cannot be undone: eg someone dyed a sweater with an expensive dye? Netivot Hamishpat holds that the dyer must be paid (375:(2)). CI disagrees and says that one cannot be forced to accept a benefit against his will. Instead the owner swears he doesnt want the benefit and doesnt pay.<br>
</div><div><br></div><div>Conclusion: According to the Netivot the only thing that counts is whether the owner in fact received a benefit. If he did then he has to pay whether or not he wanted that benefit. According to CI one pays only for a benefit that one wants and one cannot force a benefit on someone else and demand payment. How much the payment is will again be a disagreement among many shitot</div>
<div><br></div><div><span style="font-family:arial,sans-serif;font-size:13px">> Again, a true BD would thrash our trespasser/gardener/squatter, using</span><br style="font-family:arial,sans-serif;font-size:13px"><span style="font-family:arial,sans-serif;font-size:13px">> maakos mardus to prevent the breakdown of society, after forcing him</span><br style="font-family:arial,sans-serif;font-size:13px">
<span style="font-family:arial,sans-serif;font-size:13px">> to pay him for being a 'mazek' and damaging the garden he pillaged.</span><br style="font-family:arial,sans-serif;font-size:13px"><br style="font-family:arial,sans-serif;font-size:13px">
<span style="font-family:arial,sans-serif;font-size:13px">>Except that a true BD would look in the gemara and Shulchan Aruch, where it</span><br style="font-family:arial,sans-serif;font-size:13px"><span style="font-family:arial,sans-serif;font-size:13px">>says to do the opposite. You're arguing here against a firmly established </span><span style="font-family:arial,sans-serif;font-size:13px">halacha.</span><br>
</div><div><span style="font-family:arial,sans-serif;font-size:13px"><br></span></div><div>According to everyone if the owner says before the action that he does not want the work then he need not pay. This is explicitly to prevent workers from entering fields and making a living against the will of the owners which would lead to a breakdown in society.</div>
<div><br></div><div><span style="font-family:arial,sans-serif;font-size:13px">> To avoid him and his other 'anshei sedom' friends from "removing splinters</span><br style="font-family:arial,sans-serif;font-size:13px">
<span style="font-family:arial,sans-serif;font-size:13px">> from someones fence until there is no fence left" (in whatever form this</span><br style="font-family:arial,sans-serif;font-size:13px"><span style="font-family:arial,sans-serif;font-size:13px">> manifests itself in), BD will thrash the first person.</span><br style="font-family:arial,sans-serif;font-size:13px">
<br style="font-family:arial,sans-serif;font-size:13px"><span style="font-family:arial,sans-serif;font-size:13px">>>Except that the halacha says it's the second person, the owner, who is a </span><span style="font-family:arial,sans-serif;font-size:13px">sodomite.>></span><br>
</div><div><span style="font-family:arial,sans-serif;font-size:13px"><br></span></div><div><span style="font-family:arial,sans-serif;font-size:13px">The one who enters someone else's house or does work univited in his field is the rasha.</span></div>
<div><span style="font-family:arial,sans-serif;font-size:13px">The only question is what is the halacha after it already happened.</span></div><div><span style="font-family:arial,sans-serif;font-size:13px">The commentaries state that one cannot force someone to allow others live in his empty house.</span></div>
<div><span style="font-family:arial,sans-serif;font-size:13px">One does not say "kofin al miday sdom" in this case. It is also obvious from SA that they went out of their way to limit this halacha. Almost every "se-if" in CM 363 befins with "yesh omrim" that qualify the halacha. Thus, for example, if the trespasser does minimal damage to the house he is responsible for the complete rent that this place goes for and not just the minimal damage that he did. I interpret this approach as again trying to limit the rights of outsiders to take over someone's property even when he doesnt do any damage or even provides an unrequested benefit.</span></div>
<div><br></div><div>-- <br><div dir="ltr"><font color="#000099" face="'comic sans ms', sans-serif">Eli Turkel</font></div>
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