Question (repeat of last week’s 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
Last week we dealt with the first period when the property was unusable. This article will discuss the months when you returned, paid full rent but only enjoyed partial use of the property. Your question is whether you are entitled to a refund for part of the rent that you paid for that period.
In halochoh, possession of a disputed sum (known as muchzak) carries great weight. In your case you are not in possession of the sum at issue. Your landlord is in possession.
Let us first discuss what you would have had to pay if you had not already paid, i.e. if you had returned to the premises as soon as they became available, but had not paid any rent, and now the landlord asks you to pay for the time you used the premises. In this case you are in possession of the disputed sum.
In the previous article, we mentioned that since Covid affected the entire nation, the situation is classified as a makas medino – a national catastrophe. We introduced two approaches to rentals that were adversely affected by a makas medino, one of the Maharam Padua and one of the Ramo. We will first discuss what each opinion rules in the hypothetical situation in which you are in possession of the disputed sum.
We recall that in the previous article we wrote that the reason you did not have to pay for the two months that you did not use the facilities is because you informed the landlord that you wanted to terminate your contract and vacate the premises. Your action was effective according to the Maharam Padua and those who follow his opinion. Thus, from a halachic standpoint your contract ended at that point. Carrying that further to the period when you returned, it means that you returned to the property knowing the landlord’s price without discussing prices.
Even if you had no previous agreement, i.e. if you discussed with the landlord how much to pay and he told you his price and you told him the amount you were willing to pay and then you moved in with no further discussion, you would be required to pay the landlord’s price.
The source for this ruling is a Tosefta (Kiddushin 2, 11) that discusses a case of two people who were negotiating a sale and the seller asked for two hundred and the buyer offered just one hundred. Since they could not reach an agreement they then parted company. The Tosefta rules that if subsequently the customer approached the seller and asked for the item and they did not discuss prices any further, the customer is required to pay the price the seller asked for during the negotiations. The reason is that when the customer broke the stalemate and approached the seller, he thereby indicated his agreement to the seller’s price.
In your case the situation is more conclusive, since you never even mentioned a different price. All you did was to move into an office whose price you knew without requesting a reduction in price. Therefore, by moving back you indicated you accepted the landlord’s terms.
Thus, if one follows the opinion of the Maharam Padua you are required to pay the full price for the time you resumed your use of the offices. Moreover, in the case at hand you even paid the seller’s original price and are no longer in possession of the disputed sum. Therefore, this opinion would certainly maintain that you are not entitled to a refund.
We wrote last week that the opinion of the Maharam Padua is disputed by the Ramo and others who follow his approach. This school of thought maintains that since the situation was a makas medino, often one may not legally terminate a rental agreement. Therefore, when you resumed using the offices you were using them within the framework of your original agreement. The reason you may be entitled to a reduction in rent is because at the time you originally rented, you had full use of the offices and when you resumed using the offices you no longer had full use. Furthermore, your resumption of use is not indicative of acquiescence since you had no choice since you were just continuing the original contract.
We saw in the previous article that even though there are a number of Acharonim who side with the Ramo that one cannot always terminate the lease, they do not all agree on the question of when you may not terminate the lease and how much you have to pay if you may not terminate the lease.
One of these opinions is the Taz (siman 321). However, in your situation the Taz would side with the Maharam Padua that your cancellation was effective because in the first period the offices were required to be completely closed. Therefore, what we wrote according to the Maharam Padua is true according to the Taz as well.
Another opinion that sides with the Ramo is the Aruch Hashulchan (321, 9-12). He maintains that we must differentiate based on the intended use of the rental. If the rental was in order to earn the renter a profit, cancellation is not possible. However, if no profit was intended cancellation is effective. Since you are a chessed organization he too would agree that your cancellation was valid.
A third opinion that disagrees with the Maharam Padua is the Nesivos (321, 1). He maintains that the cancellation was invalid and the original contract was still in effect. However, he would maintain that you were not entitled to a reduction in your rent because the property was usable per se. It was only that you could not make full use of the rental because the particular use you intended was not possible during part of the rental period. Therefore, he too would require you to pay the full price.
Thus, we have established that everyone agrees that you were required to pay the full price when you resumed use of the property and they just disagree over whether you were required to continue the rental or not.
We should note that all the above is true even if you would have not already paid the full price and were thus still in possession of the disputed sum. However having paid the full-price makes your case for having your rent reduced even weaker, because the opinion of the Machane Efraim (Sechirus 7) is that even when one is entitled to a reduction in price based on a makas medino he forfeits that right by paying. The reason is that paying shows agreement to pay the full price in spite of the altered state of affairs. The basis of this argument is Tosafos (Bava Metsiyo 79B). While others disagree with the Machane Efraim it will not affect the outcome since the consensus in any case is that you were required to pay the full-price.
