Question
I rented offices for a year beginning in August 2019. In March of 2020 the government ordered all offices closed for almost two months. Since the epidemic adversely affected my income in a very serious manner, I informed the landlord of my unequivocal desire to vacate and requested that he find someone else to take over my lease. However, since he did not bring in a new tenant, I resumed using the property when the government lifted its ban on using offices. However, my use of the rental was curtailed because large gatherings were still banned and part of the rental is a conference room which was unusable both because of the ban on large gatherings plus no one wanted to endanger their health. For the two months when the total ban was in effect I did not pay rent, but I did pay rent in full for the following months when I enjoyed only partial use of the facilities. Do I owe any money for the two months that I couldn’t use the property at all? Or perhaps the landlord owes me some money for the months I had only limited use of the property?
Answer
Since this question keeps coming up in various forms and the issue is very complicated, it is important to discuss the basics and explain the various positions and their rationale in a clear manner.
In this article we will deal with the first period when you had no use of the property. The fact that you could not use the property was unforeseen at the time of the rental and was not due to your choice. Therefore, your inability to use the property is classified as resulting from an oness. However, this oness was not a private oness, like when one rents a property and then becomes ill preventing him from using the property. The circumstance which prevented you from using the property was a general oness which prevented everyone from using their office for anything more than their personal use. Furthermore, it is important to note that the oness affected both renters as well as owners of offices. This type of oness is called by the Gemara a makas medino-a national calamity. The laws concerning payment under these circumstances are not fully discussed in the Gemara, leaving a major dispute.
The one case of a makas medino which is discussed in the Gemara, concerns a person who rented a field where the rent was for a fixed amount of the crop (unlike a sharecropper who pays the owner a percentage of the crop). Due to unforeseen infestation, much of the crop was destroyed. The Mishna (Bava Metsiyo 105B) rules that in spite of the original agreement for a fixed amount, the renter is entitled to a reduction in his rent commensurate with the reduced crop but he cannot cancel the agreement.
The Maharam of Padua was asked to rule concerning the amount of rent which must be paid by renters of stores (in Italy in the sixteenth century) that were licensed to lend money to gentiles for interest. At the time the rental agreement was signed, the renters were allowed to freely lend to gentiles and charge interest. In the middle of the multi-year rental period, the local ruler issued an edict forbidding Jews to charge interest on loans which were not secured by collateral. This curtailed the profits of the renters of these stores and they claimed they were entitled to pay reduced rent based on this Mishna.
The Maharam replied that there is another Mishna (Bava Metsiyo 78A) that deals with this issue as well and seems to contradict the first Mishna that we cited. This Mishna rules that if one rented a donkey that died during the course of the rental, the renter is only required to pay rent until the animal died and he is not required to pay even a reduced rent for the time following the animal’s death, essentially canceling the agreement.
In order to resolve this apparent contradiction, the Maharam postulates that we must differentiate between two types of rentals: rentals where the one who rented invested in the property and those where he did not. In the first Mishna, the one who rented invested heavily in the field since he plowed, planted etc. If this renter were to discontinue the rental at that point he would forfeit his entire investment. Therefore, the Mishna rules that he is entitled to reduced rent. However, in the case of the donkey the renter loses nothing by canceling the rental when the donkey died.
Therefore, the renters of the stores in the case of the Maharam, who did not invest in the stores and actually continued to use them after the edict, could have discontinued the rental at the time of the edict, but if they did not do so they are not entitled to a reduction in rent. He explains that reducing rent is not an ideal solution since, while it takes the renter into consideration, it does not take the owner into consideration since he might be able to rent the property to someone else who will pay in full.
The Maharam explains the basis for the renter’s right to cancel the agreement and why it is critical that he do so. He says that the basis is that every rental is an ongoing sale. In general when one buys an object and then discovers a blemish he is entitled to undo the sale because he never intended to purchase damaged merchandise. It is important to note that if the buyer continues using the object after discovering the damage, he forfeits his right to void the sale since his actions show that he accepts the purchase as it is.
The Maharam argues that when one rents, he is constantly purchasing the rental property on a temporary basis. Therefore, since at the outset the rental was unblemished, if it later suffered a blemish the renter is entitled to terminate the rental at that point. If the renter failed to terminate the agreement at that point he is still entitled to terminate the rental later whenever he wants. However he cannot terminate the agreement retroactively from the time of the appearance of the blemish, as the tenants were asking in the case of the Maharam. This is in contrast to a regular sale where the acceptance of the blemish means the buyer can never cancel the sale.
In your case you asked to terminate the rental but stayed on since the owner did not bring a new renter. Therefore, we have to consider whether your staying on served to cancel your notice that you desired to terminate the rental. Since the Maharam considers the rental to be a mekach to’us we can resolve this question by studying the laws of mekach to’us.
In our sefer the Mishpatei Yosher (page 448) we cite three opinions on this matter, with the majority maintaining that you did not forfeit your claim of mekach to’us. The reason is because the only reason one forfeits this claim when he uses the damaged object which he purchased following discovery of the blemish, is because by using the damaged object the customer shows that he intends to keep the damaged object in spite of the blemish. However, when the customer first informs the seller that he wants to return the damaged object the customer serves notice that his use of the damaged object should not be interpreted as intent to keep the damaged object. Therefore, in your case as well, the fact that you used the offices after having asked to leave does not cause you to forfeit your claim of mekach to’us.
Thus, we established that according to the Maharam of Padua you voided your rental agreement when you informed the owner that you wanted to cancel your original agreement. You are still required to pay for the later use of the property even though you terminated your rental. However, for the two months you did not use the rental the Maharam would rule that you do not have to pay.
The approach of the Maharam was disputed by his cousin, the Ramo. The Ramo says that the proper approach to resolve the contradiction is by differentiating between a personal oness and a general oness. The case of the donkey is a personal oness. Therefore, the renter may cancel the agreement in unforeseen circumstances. However, the infested crop was a general oness and in a general oness the renter does not have the right to cancel the rental. His only recourse is to have his rent reduced.
Later poskim took sides in this dispute. For example, the Sema and Chassam Sofer and apparently the Shach and Gra side with the Maharam Padua, but the Taz, Nesivos, and Orach Hashulchan do not agree with the Maharam. Since this matter is a dispute and you did not pay for these two months you do not have to pay for them now since the rule is that hamotsi mechaveiro olov horayo – the one who wishes to extract money must prove his position, which the owner cannot do in your situation.
Therefore, we have successfully resolved the first issue: you are not required to pay anything for the time you did not use the offices and did not pay for them. We will discuss the second period which you paid for but are asking for a return of your money in the next article, Be’ezras Hashem.
