Question

I booked a reservation for Pesach in a hotel in Italy. However, due to the health situation I canceled my reservation. I originally gave the hotel a down-payment. Do I owe the hotel anything or am I entitled to a refund on what I already paid?

Answer

Let us first analyze your situation from a halachic perspective. You reserved a room in a hotel at a time when there was no problem in going to Italy. The situation changed due to circumstances beyond your control which were not predictable at the time you booked.

From a halachic perspective when one makes a reservation in a hotel what he is doing is renting a room in the hotel. If he can not go due to unforeseeable circumstances which are beyond his control then he is an oness.

First let us talk about canceling a property rental due to a personal oness. Examples of personal oness are that  the renter himself or a member of his immediate family took ill, passed away or that the renter lost his job and can no longer afford the hotel. Since there is no Gemara which discusses this specific case, there is a major dispute among the Rishonim how to classify a property rental.

One opinion is that we view a rental as a sale for the period of time that the property was rented. The halacha is that if one purchases an item and afterwards, due to unforeseen circumstances, he can not make use of his purchase, he is not entitled to a refund. For example, if a person bought a new suit and the very next day passed away, even though he didn’t even unpack the suit he is not automatically entitled to a refund. (Of course if the terms of the sale allowed for returns then his heirs are entitled to do so.) Therefore, the Rishonim who view a rental as a temporary sale rule that one who is prevented from using a rental due to unforeseen circumstances cannot go back on his commitment.

The majority of Rishonim, however, compare rental of a property to an employment agreement. When one makes an employment agreement he is in a sense renting a worker. The rule for employment agreements is that if the employer cannot avail himself of the services of his employee due to unforeseen circumstances, the employer may cancel his employee. This can be seen from the Gemara (Bava Metsiyo 77A) which rules that if one hired workers to come in the morning to draw water to irrigate his field and unexpectedly it rained overnight, he may release the workers without pay.

Therefore, for example, these Rishonim rule that if one hired a private tutor for his son and the son took ill for an extended period he may release the tutor without pay. Similarly, according to this opinion, if one rented a property and later, due to unforeseen circumstances, was forced to cancel he may cancel the rental at no cost.

The result of the above discussion is that if one rented a property and was forced to cancel before the rental period began, he may cancel and is not liable whatsoever. Therefore, certainly you do not owe anything to the hotel. However, there still remains the issue of your down payment.

If a renter gave a down payment and then was forced to cancel due to a personal oness, he forfeits his down payment. The reason, according to Tosafos (Bava Metsiyo 79B) and the Maharam, is that by giving a down payment without attaching any stipulation, the renter agreed that even if he is eventually prevented from using the rental due to unforeseen circumstances, nevertheless he will pay.

All the above is true in case a person has a personal difficulty. However, since in the present situation the difficulty is common to many people the halacha is more favorable to the renter. The reason is because when a person has an individual difficulty we view it as being his fault in the sense that Hashem may wish to bring a problem upon him. Therefore, he can’t push his problem onto someone else.  However, when a large segment of the population has the same difficulty, we do not attribute an individual’s difficulty to his personal deeds.

The example discussed in the Gemara (Bava Metsiyo 105B) is where a person rented a field for a fixed amount which would be paid from the crop. If pests damaged only the renter’s individual crop, the renter must stick to the terms of their agreement. However, if pests damaged many people’s crops, then the renter is entitled to a reduction in his rent.

The Ra’avan (an early Rishon) was asked what the halacha says in case a person rented a property and paid the rent up front and then due to a plague had to leave the town. He ruled that the renter is entitled to a refund of half the amount that he paid.

He gave three reasons for his ruling. His first reason is that since there is no reason to pin the blame on either party they should suffer equally and he adds that is the din in the case of the Gemara as well: the renter will get half of a reduction. A second reason is that the fact that people needed to leave the town affected both the renter and the property. The renter had to leave and the property became unfit for use. His third reason pertains in case not everyone fled the town. Then the owner can argue that if the person hadn’t rented his field perhaps someone who did not leave would have rented it.

The poskim bring the various reasons of the Ra’avan and differ with each other over which is the main reason. In the present situation the third argument would not apply since no one wants to visit a dangerous place. Therefore, the fact that it was rented did not affect the owner in a detrimental manner at all. However, the first reason does apply and there are poskim who follow this opinion. According to this reason it is proper to pay half of the rent.

Therefore, if the down payment is less than half the full price then you will forfeit your down payment and that is all. However, if it is more than half of the full price the owner should return any amount which is above half of the full price. It would seem that the hotel should also take into account its savings and compute its net loss of profit and not take more than half of that, and not the full price.

In conclusion: You do not owe the hotel anything. How much the hotel should return is not fully-decided. It would be proper for the hotel to return any amount of the down payment that is more than half of its lost profit.

 

 

 

 

 

 

 

 

 

 

 

 

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