Question:

Since I own an apartment in a distant location, I engaged a management company to find me a tenant and to maintain the property on a day-to-day basis. The company found me a tenant and drew up a contract between me and the tenant. One of the terms of the contract was that, if he gives three months’ notice, the tenant has the right to leave before the conclusion of the contract period. As stipulated in the contract, the tenant gave me monthly head checks for the entire year. One day the tenant called up the management company and informed them that he would like to move out in two months’ time. Without consulting me or checking the contract, the secretary said it is fine and the tenant left after two months elapsed and the apartment was vacant for the third month. May I deposit the check for the third month since I never gave permission to leave after two months or must I return it to the tenant since he was given permission by the management company?

Answer:

The legal status of the management company is that of a shaliach-an agent. In general, the actions of a shaliach are legally equivalent to the actions of the meshalaich-the one on whose behalf the shaliach was acting, as the Gemara says (Kiddushin 41B), “Shelucho shel odom kemoso.” However, there is an exception to this rule in case the actions of the shaliach are not in the best interests of the one on whose behalf the shaliach is acting. In this case the person can claim against his agent that, “I appointed you as my agent only to act in a manner which is beneficial to me and not in a manner which is detrimental to my interests-Lisekuney shedarticho velo le’avusay.”

The logic behind this exception is obvious. The actions of an agent are legally binding on the one who sent him if he acted in his interest. However, if he acts in a manner which is against the interests of the one who sent him, he is not acting as an agent should and his actions do not bind the one who sent him.

An example which the Gemara (Bava Basra 169B) gives is where a lady asked an agent to buy a field for her. He bought the field but neglected to write in the purchase document that the seller guarantees the sale and must reimburse the buyer if the field is taken away from her because of liabilities incurred by the seller. The Shulchan Aruch (Choshen Mishpat 182, 6) rules that the lady may void the sale.

Another example brought in the Gemara (Kesubos 99B) is where an agent overpaid for a property. The buyer can void the purchase since the agent didn’t act in the proper manner.

There is one important stipulation that is imposed by the Rambam (Shluchim 2, 4). He rules that the sale can only be voided if the other party knew that he was dealing with an agent. If that was not clear, then the sale remains valid and the agent has to pay the difference (See the notes of R. Akiva Eiger on Choshen Mishpat 182, 2.).

In your case, the renter knew he was dealing with an agent. Therefore, you are not bound by the agent’s word that he could leave after two months and you can tell the tenant that as far as you are concerned he had to give you three months’ notice, as stated in the contract, and you may deposit the check. If the tenant suffered a loss as a result of the secretary’s permission, he can take her to beis din but that is not your concern.

 

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