BS”D

 

Question

I manage a yeshiva for American bochurim who learn in Eretz Yisroel. I rented a furnished apartment for one year beginning in Cheshvan 5780 in a residential building in order to house six of the bochurim. Previously, the apartment was rented to a family. We were not limited in our use of the apartment. We could use it as a residence or as a dormitory. Even though we did not specify this in the contract, it was clear to the owner of the apartment that our sole purpose in renting the apartment was to house bochurim, which he specifically allowed us to do. Around Purim all of the bochurim departed due to the covid virus and stopped paying tuition to the yeshiva. I immediately informed the owner. At first he couldn’t find anyone to rent. When he did find someone, he was forced to reduce the rent by two hundred dollars.  Am I responsible to cover the owner’s loss?

Answer

We have discussed in previous articles that in contrast to secular legal systems, the Torah’s legal system takes into account whose “fault” a situation is, and the one who is at fault has the responsibility. Furthermore, we learned that when a problem befalls the general public, we do not consider either party at fault. Therefore, we must determine whether or not, in this situation, we can attribute the problem to the renter.

The reason why it is an issue is that even though anyone who rented an apartment for students from chutz lo’oretz had the same problem, which would indicate that it is a general problem, nevertheless the property did not have to be used by students from chutz lo’oretz. It could be used by an Israeli for residential purposes and according to the rental agreement the renter could live there himself or sublet to someone else.

This question is the subject of a dispute amongst the Poskim. The Maharshach (2, 198) was asked about a store in a market which was rented and in the middle of the rental period the government decided that all those who sold what was sold by this store, could no longer operate in this market. The Maharshach ruled that since the ruling did not relate particularly to this renter, it was called a makas medino and the renter was entitled to cancel the rental agreement.

However, many poskim (Ra’anach (1, 38), Shai Lamora (5), Machane Efraim (Sechurus siman 7) disagree with the Maharshach and rule that this is not considered a makas medino since the property was usable. Furthermore, in your situation it could be that the Maharshach would even agree that this is a makas medino, since the Maharshach argued that the renter was blameless since one could not expect him to use the store to sell something else which the government still allowed, since people who have one line of business cannot be expected to switch lines in the middle of their career. This argument would not apply here since the renter could certainly use it himself or sublet the apartment to someone else without any problem.

Even though we have determined that the renter cannot argue that this is a makas medino, it is true that the new situation was unforeseen at the time of the original rental agreement. There is a major dispute among the Rishonim if a renter can cancel a rental agreement in case of an unforeseen event during the rental period which prevents the renter from using the rental property.

There are Rishonim like the Rashbo (Response 2, 228) who rule that the renter must carry out the rental agreement as if nothing occurred. Their argument is that property rental is considered by Chazal as a temporary sale. The property is viewed as having been sold to the renter for the duration of the rental period. They argue that just like any other sale it is final. Just like one is not entitled to undo a sale because of unexpected events that transpired after the sale was consummated, so too one cannot undo a rental after the rental was in force.

However, many Rishonim agree with the opinion of the Maharam of Rottenberg who compared a property rental not to a sale, but to a rental of a worker i.e. an employment agreement. The Gemoro (Bava Metsiyo 77A) gives a number of examples of unforeseen events which prevented a worker from carrying out the terms of his employment agreement and the Gemoro rules that the employee is not entitled to payment if he was prevented from performing his job due to unforeseen circumstances. For example, the Gemoro writes that if one hired workers to irrigate a field in the morning and there was an unexpected downpour at night, the employer is not obligated to pay the employees.

The Maharam (cited by Mordechai Bava Metsiyo 345) deduces from this that if one rented a property and the renter passed away and his heirs do not want to continue the rental, they are entitled to cancel the rental agreement since the death of their parent was unforeseen. However if the rental was prepaid the heirs are not entitled to a refund, but if there was no prepayment they are free to cancel the rental agreement.

The Ramo (334, 1) cites both opinions and rules that if the rent was prepaid the heirs are not entitled to a refund but if it was not prepaid the heirs are not liable for future rental payments.

Thus, we have established that in case it is clear at the time of a rental that it is being rented for a specific purpose and that purpose is no longer necessary, the renter cannot be forced to make future payments.

In this particular case it was not stated explicitly that the rental was being done on behalf of your yeshiva and under the terms of the rental agreement you, the manager, could have used the apartment for yourself or you could have sublet the apartment. Therefore, we must consider whether the unforeseen events that prevented the yeshiva from continuing suffice to categorize the cancellation as having resulted from unforeseen circumstances.

You mentioned in your question that it was clear at the time of the rental that the purpose of the rental was to house bochurim of the yeshiva. We find in other cases that poskim rule that when one’s intentions are clear he does not need to spell them out explicitly. For example, the halacha (Choshen Mishpot 232, 21) is that if a customer told the seller that he intends to take what he purchased to a different city, he need not return the purchased object in case the purchase is voided due to it being a mekach to’us.

The Nesivos (232, 10) proves that if it was clear that the customer intended to take the purchase to a different city the halacha is the same even though this fact was not stated explicitly. The rationale is that a clear umdeno is equivalent to explicit speech.

Therefore, since it was clear that the purpose of the rental was to house students of the yeshiva, you, the manager, are not liable for any unpaid rental fees for the period following the departure of the students. However, you are not entitled to a refund of any money that you paid for this period since this was not a makas medino. If you prepaid the rental, the landlord will also not have to refund the difference between what you paid and what the new tenant is paying him, but if you did not prepay you will not have to pay the difference to the landlord.

 

 

 

 

 

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