Question

We got married last summer and came to Eretz Yisroel to learn for the year. We rented an apartment in Yerushalaim. In Teves we made plans to go to our parents for Pesach. We booked tickets for a flight right before Rosh Chodesh Nissan and our parents rented us an apartment right near their house. We used our tickets and went home for Pesach. Now we are stuck in the U.S. and have no use for our apartment in Israel. Can I tell the owner in Israel that I want to give up the apartment since I have no use for the apartment?

Answer

We discussed in previous articles that when an unforeseen event befalls the general population then the situation is classified as a makas medino which sometimes has different rules from the rules governing an individual in the same situation.

Additionally, we discussed in a previous article that there is a dispute among the Rishonim whether a person who rents an apartment and then is prevented from using the apartment may terminate the agreement, which is precisely what you wish to do.

We saw that this a major dispute and the Ramo rules that if the renter passed away, for example, his heirs can terminate the agreement. There is a dispute whether the Mechabeir agrees with the Ramo or not (the Machane Efraim (Sechirus 5) and Even Ho’ozel (Sechirus 5, 3) say that he does not agree) but many of the later Sefardi poskim (including Porach Matei Aharon, Chikrei Lev) rule that the renter may terminate the agreement since the dispute was not decided.

Therefore, if the renter has not yet paid for the apartment he can terminate and avoid paying. However, if he already paid, he cannot demand the return of his payment.

The issue in your situation is whether the fact that you are being prevented from returning is a valid reason to terminate the agreement.

The reason we allow one to terminate an agreement in certain situations is that we assess that the party that entered into the agreement never meant to obligate himself under the circumstances that occurred. Therefore, he is not breaking the agreement, but rather he never obligated himself. Thus, there are various obligations that one may extricate himself from and a ruling which is given in one situation often may be applied to another situation.

An example of this phenomena is a ruling of the Terumas Hadeshen (1, 329). He was asked about a worker who was hired to produce wine. The employee stopped in the middle of the wine production and in order to avoid a loss the employer hired a replacement, who charged more money, to complete the job. Normally, the rule is that the worker who quit has to pay his employer for the extra amount the employer was forced to pay his replacement. However, in this situation the Terumas Hadeshen ruled that he does not have to pay because his quitting was with good reason since his wife got sick and he had to take care of his wife. He proves that he does not have to pay from a Mishna (Nedarim 27A) that rules that if one swore to someone that he will be his guest and then the guest’s son became ill, the guest may cancel his commitment and he has not violated the prohibition against swearing falsely. Thus the Terumas Hadeshen derived a principle from an oath to the obligation of an employee towards his employer.

It is important to note the Ran’s explanation why we say that the one who swore did not say a falsehood. He writes that the reason is because it clearly never was the intention of the one who swore to obligate himself to be a guest if his son became ill. Since the Terumas Hadeshen gives his ruling in a case which concerned the obligation of a worker towards his employer, it follows that here too even though it is a mutual obligation, one is not bound by his obligation if it is clear that he never intended to obligate himself under the circumstances which turned out to be the case.

In order to answer your question we have to consider two stages. There is the present state when you are stuck in chutz lo’oretz and the Israeli government will not allow you to enter Israel since you are a foreigner. The fact that you can’t come is definitely an oness as we see from the Gemara (Kesubos 3A) that states that if one obligated himself to return by a certain date and a river that he had to cross became impassable, he is exonerated from his obligation because he physically can’t come. However, in your situation you cannot claim oness because you are now stuck, since you knew of this possibility at the time that you departed Israel. One cannot claim oness if he willingly placed himself in a situation.

However, we also have to consider the circumstances at the time you departed Israel. We saw before that if it is clear that a person would not have obligated himself in the first place if he had known what happened in the future then we say that he never obligated himself. Translated into your situation this means that we have to consider if one can argue that it is clear that you never meant to obligate yourself to take the apartment at the beginning of the year if that meant that you would have to stay in Israel for Pesach. However, that is not obviously true, especially in light of the fact that many couples, even newlyweds, chose to stay since they knew that they would have difficulty returning.

Even though you don’t have this shailo, we note that had you chosen to stay in Israel you could have extricated yourself from your obligation to pay rent on the apartment you rented in the U.S. and the airline ticket, since at the time you rented that apartment you didn’t foresee the present situation.

In conclusion, you cannot cancel your rental agreement for the apartment in Israel. You can find someone else to rent the apartment and then you will meet your obligation. Even if you only find someone who will pay less rent it may be worthwhile since you will only have to cover the difference between the amount you paid and the amount the new renter will pay.

 

 

 

 

 

 

 

 

 

 

 

 

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