Question (from last week)
My father who lives in Yerushalaim became ill recently. In order to visit on Shabbos, I agreed to rent an apartment in a nearby neighborhood but there was only an oral agreement. On Wednesday my father’s condition worsened and he had to be hospitalized and they also diagnosed him with Covid. Since we could no longer visit him on Shabbos, we decided to rent a larger apartment in a different neighborhood to enable us to be together with many more family members. When we called to cancel, the owner told me he had turned down a number of offers because he had rented to us. In the end, he didn’t find another renter. Must I pay him since I had originally agreed to rent the apartment and caused him a loss?
Answer
Last week we discussed the question from the viewpoint of the Gemara and Shulchan Aruch that you did not make a formal kinyan and therefore, your halachic status was that of one who reserved the apartment, but you never formally acquired the rental property. The reason you did not acquire the apartment is because you never performed an action that qualifies as a kinyan. We saw that according to many opinions you are nonetheless liable. However, it is important to note that your liability is for damages and not for rental payment.
In this article we will consider that perhaps nowadays what you did qualifies as an act of kinyan even in Jewish law and you actually owe rent. Of course, if you pay rent there were no damages. However, we saw in the previous article that some poskim maintain that you do not need to pay damages. Therefore, the discussion here is important because even those who maintain that you don’t pay damages may agree that you need to pay rent. Also if you need to pay rent, we do not have to determine if there were damages or not.
The reason the situation changed from the time of the Gemara and the Shulchan Aruch is based on the fact that nowadays, under secular law, if the owner of an apartment and a prospective tenant agree – even on the phone – to rent an apartment, the rental agreement is legally in effect.
There are two reasons the secular law can create a kinyan in Jewish religious law. The first reason is that secular law may create a custom and there is a halachic kinyan called setumpto-custom. Custom does not have to be based on secular law and often secular law does not create a custom. Stated precisely: any act that is customarily accepted as a means for changing ownership is considered as an act of kinyan under Jewish law. For example, in many places a handshake is accepted as effecting change of ownership. Sometimes the secular law recognized this and sometimes it did not. However, in any place it was the established custom among Jews it is halachically valid. For example, in many times and places if one Jew sold a cow to another Jew and they shook hands, ownership of the cow changed hands according to Jewish law.
There is a dispute about the status of this kinyan. The Nesivos (201, 1) writes that it is an institution of the Rabbonon that custom affects a kinyan.
However, the Chasam Sofer (Yoreh Deoh 314, nimtso) reasons that it is effective from the Torah. He argues that in other cases when the Rabbonon enacted a kinyan their decision was to grant legal status to an action. However, setumpto-custom does not stem from a decision of the Rabbis. Rather people decided on their own to view an action as a means for transferring ownership. Since it is people’s decision, it is viewed as if it were a condition stipulated in the agreement of the parties, that they can transfer ownership by means of that customary act. Just like any other condition in a monetary agreement is effective under Torah law so too this condition is effective.
This is an important issue when one wishes to transfer ownership in order to affect Torah Law. For example, the Chasam Sofer was discussing one who sold his cow to a gentile by means of a handshake in order to prevent the first-born calf from being a bechor. If one follows the approach of the Chasam Sofer, there is no problem. However, if one follows the approach of the Nesivos it could be that the calf is a bechor since from the standpoint of the Torah, ownership of the mother was never transferred to a gentile. This is also an issue in selling chametz. Since chametz is a Torah prohibition we must sell chametz to a gentile in a manner that is valid under Torah law and does not only have the status of a Rabbinic enactment.
As far as your question is concerned, it does not make a difference if the kinyan has the status of Torah law or Rabbinic.
However, there is an issue if speech suffices to affect a kinyan of setumpto or must one perform a physical action.
A source that speech suffices is the Maharam of Rottenberg (cited by Mordechai Shabbos 472 and Beis Yosef Yoreh Deah 264) who ruled that one who tells a moheil that he can perform a bris on his son has committed himself by means of setumpto to that moheil. The one who disagrees is the Rosh (res. 12, 3) who comments on this Maharam that even if there is a custom to rely on speech to affect a transfer of ownership it is not a proper custom. (He says it is a minhag gorua.) Thus it cannot qualify to affect the kinyan of setumpto. He adds that perhaps it was not the custom either to commit oneself verbally.
There are poskim (e.g. the Maharshal in Yam Shel Shlomo BK 8, 60) who understand that the main reason of the Rosh was his second reason, and even he agrees that where there is a well-established custom to rely on speech alone to obligate the one who spoke, speech does affect a kinyan. Based on this, he rules that if the gabbai calls someone to the Torah and another person takes his place, he is liable to pay the one who was honored by the gabbai. Similarly, Rav Moshe Sternbuch (Teshuvos Vehanhogos 1, 803) rules that the custom of diamond dealers to transfer ownership of diamonds by saying the words “mazal ubrocho” is a valid kinyan and one may not back out of his commitment afterwards. He bases himself on the fact that this is a prevalent custom. Furthermore, he reasons that it is a good custom because it saves diamond dealers from having to walk around with their diamonds.
Based on the above, many poskim therefore maintain that you actually rented the apartment and you owe rent even if you would have been a true onus (which you weren’t). The case for ruling that a verbal agreement has halachic effect may be even stronger, especially when one rents from a hotel, since conversations are generally recorded. Maybe even the Rosh would agree that a recorded conversation is not just speech because it does not have the drawback that mere speech has, namely that one can deny what he said. Therefore, it may very well be that if the owner recorded your conversation everyone would agree that you actually rented the apartment. Certainly if you and the owner exchanged e–mails or WhatsApp’s stating that you are taking the apartment you would be a renter.
The second reason that you may be considered a full-fledged renter is based on the concept of dina demalchusa dina i.e. it is a halacha that one must abide by the laws of the land. We should understand the significance of this rule. Whereas one who is not a religious Jew decides whether he will abide by a law based on considerations such as what are the consequences if he does not abide by the law (e.g. what are the chances he will be caught, what are the penalties for not abiding) a religious Jew must keep the law even if there are no negative consequences for doing so, simply because the law assumes the status of a halacha. We must keep the halacha because Hashem or the Rabbonon said so even if nothing bad will result from not keeping a halacha.
This is a lengthy topic, which we won’t treat now but just consider this rule as it pertains to your situation. The Chasam Sofer that was cited earlier says that even the Nesivos who maintains that ordinary setumpto is only rabbinic agrees that where the custom is actually the law of the land the kinyan is Biblical since we have the support of the principle that dina demalchusa dina. The Nesivos (201, 1) (and the Noda Biyehuda (Orach Chaim Tinyono 59)) himself raises the possibility that a custom that is also the law is effective even where custom alone would not be effective. Since the law is that verbal contracts are binding, by virtue of dina demalchusa combined with setumpto we have even more reason to maintain that you actually made a kinyan and you actually rented the property. If you rented the property then we don’t need all of the previous article in order for you to be liable.
Finally, a word about whether you can claim that your cancellation was a result of an oness since your father’s health situation changed between the time you rented and Shabbos when you actually needed the apartment. One cannot classify this as an oness since what happened did not affect your ability to use the apartment. You just chose another apartment that was more suitable for your needs since you anyway couldn’t visit your father. Whenever one cancels because he wants to improve his situation, we do not classify the cancellation as an oness. One source for this principle is the Ketsos (316, 1) who rules that if a person rented a house and then inherited another house making the rental unnecessary, nevertheless he may not cancel his rental since he can still use the house.
In conclusion: Besides the reasons mentioned in last week’s article why you are liable for causing a loss to the owner, you are almost certainly liable as a renter. Additionally, you cannot claim that your cancellation is a result of an oness.
