I am regularly asked if it permissible to move into unoccupied better (and far more expensive) seats at a ball game, well into the game when it is clear that no one will be sitting in those seats during that game. Some argue that a celebrated discussion in the Gemara (Bava Kama 20a) indicates that it is permissible to do so. Upon investigation, though, it is clear that this is not the case.
Bava Kama 20a
This Gemara discusses the obligations of one who resided in another’s property without the owner’s permission. The Gemara presents three variations of this situation. One extreme case is when the property was not available for rent and the squatter would not normally pay for a place to reside, then it is clear that the squatter is not required to compensate the owner, since the squatter did not benefit (i.e. save money from not having to pay rent) and the owner of the property did not lose (i.e. was not deprived of generating income from renting out the property).
The other extreme is where the property was normally rented out and the squatter deprived the property owner from the opportunity to rent out the property and the squatter normally would pay for a place to live. In such a case it is obvious, states the Gemara, that the squatter must reimburse the property owner since the squatter benefitted and the owner has sustained a loss by his presence in the property.
The more moderate situation is the one that is subject to considerable discussion in the Gemara (Bava Kama 20a-21a). This situation is where the squatter would normally pay for a place to live but the owner would not normally rent out the premises occupied by the squatter. In such a case the squatter has benefitted but the owner has not sustained a loss. This is referred to in the Gemara as “zeh neheneh v’zeh lo chaseir”, this one benefits and the other does not lose. The Halachah (Shulchan Aruch C.M. 363:6) follows the opinion of Rabi Yochanan that the squatter is not required to pay the owner in such a situation, since the latter did not sustain a loss in such a case.
Kofin Al Middat Sedom
There are a variety of explanations offered for Rabi Yochanan’s view. A popular explanation is that of the Penei Yehoshua (Bava Kama 20a) who writes that, according to Tosafot (ad. loc. s.v. Zeh Ein Neheneh), it is an example of “kofin al midat Sedom”, beit din coercing people to not be overly particular about their property. This explanation is supported by Rashi (Bava Batra 12b s.v. Al Middat Sedom) and Tosafot (ad. loc. s.v. Kegon) as well as the Rambam (Hilchot Shecheinim 7:8).
The Mishnah (Avot 5:10) condemns individuals who act in the manner of Sedom by claiming, “What is mine is mine, and what is yours is yours.” This implies that one should not always demand from another exact payment to which one is entitled. Thus, one should not demand payment for gas and tolls from another who has asked him to ride home in his automobile if the latter did not take the former out of his way. Despite the fact that the rider has saved money, since he does not have to pay transportation costs, it is nonetheless Somodite behavior for the driver to demand payment if he has lost nothing. In fact, the Ri (presented in Tosafot ad. loc.) implies that the rule of kofin al middat Sedom is a Torah level law and not merely a rabbinic enactment.
The Gemara (Bava Batra 12b) discusses a classic case of Kofin Al Middat Sedom where brothers divide fields they inherited and one of them owns a field adjacent to an inheritance field. Rabbah rules that we apply the rule of kofin al middat Sedom and we accommodate the brother in a case where the objectors have no good reason not to. The brothers have nothing to lose by taking different fields and the need to have one's fields adjacent to each other is not merely a matter of convenience. It increases the value of the field and makes farming the fields far more efficient. Thus, brothers’ refusal to accommodate the brother with a neighboring field is regarded as Sodomite behavior.
In a modern application of this principle, an Israeli beit din (Shurat Hadin, vol. 2, pp. 323-333) adjudicated a case where Reuven awaited a refrigerator delivery, which could only be done through Shimon’s balcony. Shimon objected, without providing a good reason, unless Reuven paid him. The beit din ruled that Shimon should be forced to do the favor for free.
Thus one could reason that one may sit in unoccupied seats at a ball game. Although one benefits from sitting in better seats, the stadium owners are not deprived of an income when people sit in unoccupied seats for the latter portion of a ball game. In such a situation, one could suggest, we are entitled to coerce the stadium ownership to refrain from engaging in Sodomite behavior.
Rav Hershel Schachter – Prohibits Moving Seats at a Ball Game
Nonetheless, it is clear that it is forbidden to move to the empty seats at a ball game. The Ritzva (presented in Tosafot ad. loc.) states explicitly that the property owner enjoys the right to keep people from squatting on their property. Although some Rishonim disagree, the Penei Yehoshua (ibid.) and the the Encyclopedia Talmudit (12:5) note that the majority of Rishonim agree with the Ritzba. Indeed, the Rama rules in accordance with Tosafot.
The Rama, however, limits the Ritzva's ruling to cases in which the owner has potential to derive benefit but chooses not to do so. The Rama explains that a property owner's choice not to rent out a particular piece of property does not entitle a squatter to demand free access to that property. If, on the other hand, the property owner cannot derive benefit from a piece of property, the principle of kofin al middat sedom allows a squatter to inhabit that property without permission. Accordingly, since a stadium is highly unlikely in most circumstances to sell tickets at the later stages of a game, a squatter should be entitled to demand free access to empty seats.
However, Pitchei Teshuvah (ad. loc. no. 3) notes that the consensus opinion applies the Ritzba’s assertion in all cases, that we cannot coerce a property owner to allow others to remain on his property without paying a fee. Indeed, Rav Herschel Schachter told me that the rule of “zeh neheneh v’zeh lo chaseir” is only a question of b’diavad, once the event occurred. However, he rules that lechatchilah (initially) it is forbidden to reside on another’s property without permission. Indeed the Gemara frames the issue as a question of whether the squatter must pay the property owner after the fact. The Gemara does not record an opinion that the squatter is entitled to demand the right to live for free in an area that the owner does not rent out. Accordingly, Rav Schachter told me that it is forbidden to move into unoccupied seats at a ball game.
Similarly, Rav Schachter told me that that a community is forbidden to affix a lechi (a portion of an eiruv) on another’s property without permission even if the property owner will suffer no negative consequences. Along the same lines, I heard Rav Soloveitchik instruct community rabbis not to install any portion of an eiruv without permission.
Three Additional Reasons to Forbid Moving Seats
Moreover, the principle of kofin al middat Sedom applies only to matters of serious need such as a place to reside, which seriously improve one's life, as the cases discussed in the Gemara indicate. The need for someone in a place of entertainment to move to a seat he did not pay for in order to increase the quality of one’s entertainment, seems hardly appropriate reason to coerce a property owner to allow another to sit in a sit without making paying.
Furthermore, the concept of kofin al middat Sedom seems to apply only in regards to behavior of Jews towards other Jews. It does not seem that one may coerce a nochri to abide by this principle. Even if the stadium owner is Jewish, civil law should govern since it is unimaginable that Halachah would require one law to apply for nochri customers and another standard for Jewish patrons.
Finally, stadium owners have every reason to object to people randomly moving seats. There is a need to instill a sense of order and discipline at a stadium and allowing people to move about, each according to what is appropriate in his eyes, creates a sense of pandemonium. A sense of order is certainly necessary in these circumstances since alcohol is served at such events and the potential for disorder is great. Therefore, it is entirely reasonable for stadium owners to enforce discipline by objecting to fans moving seats without permission. Could one imagine airplane passengers randomly moving into unoccupied seats in the business class or first class sections of an airplane? Such behavior is simply unheard of and understandably not tolerated by airlines. Thus, because sitting in a seat for which one did not pay will be detrimental to the stadium owner's attempt to maintain order, doing so creates a case of “zeh neheneh vezeh chaseir” (this one benefits, and the other loses). Rabi Yochanan's opinion that one does not pay in a case of “zeh neheneh vezeh lo chaseir” does not apply at all to this type of case.
An Exception – Mechilah
An exception to the rule would be in a stadium where it is clear that its owners do not mind fans to move into better seats at later stages in a game. This might occur at sparsely attended major league games such as a losing team, those played in bad weather or at a minor league game. The Shulchan Aruch (C.M. 359:1) permits one to take an item that most people do not mind being taken. Even regarding such a case, the Shulchan Aruch states that pious people should refrain even from such behavior.
In today’s major league ballparks where owners charge very high prices for seats that are closer to the field, owners almost always do not want people to move into seats for which they did not pay. One cannot extrapolate from the more relaxed attitudes of major league ball park owners of thirty years ago when player salaries and seat prices were a tiny fraction of current levels.
Conclusion
It is common today for observant Jews to attend ball games while openly displaying their identity by wearing kippot and modest dress. Since it is very noticeable when someone has moved to seats for which he did not pay, the potential for creating a chillul Hashem is great. Moving seats is generally regarded as unrefined behavior so one should avoid doing so, unless there is a clear custom in that stadium for the owners to permit fans to move to better seats at an advanced point in the game. It is certainly reprehensible to bribe an usher to gain access to better seats. Our mission to act as a “holy nation” (Shemot 19:6) compels us to act in the most upright manner especially at times when we are in close contact with nochrim.