We have been living in a rented apartment for the past few years. Over the course of the rental we cracked a few tiles in the living room. It didn’t bother us so we never repaired them. Now that we are getting ready to vacate the apartment I tried to purchase the same tile so that I could replace the broken tiles. However, I checked into a few places and was told that they no longer manufacture exactly that pattern but I could buy something similar. I told this to the landlord and he told me that since it says in our contract that I must return the apartment in the same condition as it was at the time I began renting I must change the tiling in the entire room. If this were my house I would not replace the entire tiling of the room since this is a major expense and the room won’t look so terrible with the replacement tiles. I would like to know if I am required to do as he says.
Before answering your question it is important to understand on what grounds you are required to repair the flooring. Depending on how the tiles broke there are two possibilities.
If you yourself broke the tiles, for example if you banged on a tile with a hammer or carelessly dropped a heavy object on the tiles, then you are liable as a mazik. If however, one of your children or a stranger broke the tiles, then the reason you are required to repair the floor is only because you agreed to return the apartment in the same condition as you received it.
This point was brought out by Rav Eliashev in response (Kovetz Teshuvos 1, 216) to a question posed by a renter in Antwerp whose minor son played with matches creating a fire which caused major damage to the rental. Rav Eliashev said that the father is not liable since a house is classified as an immovable object. This is a dispute between the Shach (CM 95, 8) and the Magen Avrohom (OC 637, 7) but the consensus is like the Shach, that a house is classified in halachah as an immovable object even though it was built from movable materials. The Torah excluded immovable objects from the liability of a watchman like a renter. However, Rav Eliashev added that it is customary in Israel to add a clause, as your landlord did, that the renter must return the apartment in the same condition as he received it, and if that clause is present in the questioner’s contract he would be fully liable even though it was only the actions of his minor son that caused the damages.
We can derive two important rules from this responsa: One, as we said, that there is a difference between if it was you or your minor son who caused the damages, and the second is that the clause that you must return the apartment in the same condition as you received it is valid and that it creates liability in situations that one would otherwise be free of liability.
This second point is made by the Kesef Kodshim in his commentary to Shulchan Aruch (CM 316). He also states that this condition creates liability even if the renter would not be otherwise liable under the Torah’s rules. He adds further that since it is customary to add this clause to contracts, even if it was not written in a specific contract it would still be binding since custom suffices to create liability. Thus, he would rule that in Israel, where this condition is customary, even if it was not written in your rental agreement you would be liable for the broken tiles.
Having established that there are two possible sources for your liability for the broken tiles, we have to determine whether based on each source it suffices if you simply replace the broken tiles or, since the new tiles do not match the original tiles, you are obligated to change all the tiles.
The issue concerning the liability that was created by the clause that you must return the rental in the same condition that you received it is how we understand people’s expressions when they affect others. Your landlord’s position is that you would not fulfill the condition of your contract if you do not replace all the tiles since the apartment will not look the same as it did when you received it. When you received it all the tiles looked the same and now they won’t.
The Rivash (res. 341) was asked to rule in a dispute that arose concerning A’s commitment under oath that he would give B a certain amount of money as a present. When it came time to fulfill his promise, A said he would fulfill his pledge by giving B the amount he promised with the condition that B returns the money to him. The Rivash ruled that even though in many cases of Torah law (see Kiddushin 6A) we view a conditional present as a present, nevertheless, when we are considering a present that was promised to someone else, we do not view a present given with this condition attached as a fulfillment of A’s vow.
This decision is ruled by the Ramo (CM 241, 6). The Sema (note 17) explains that it is only because A made a vow to B that we don’t consider a conditional present as fulfillment of his vow. Had he simply sworn to give a certain amount of money he could fulfill his commitment by giving a conditional present. The Rivash explained his reasoning that expressions that are used in interpersonal commitments and agreements are interpreted in the way that people usually understand them and not by their literal or legal meaning. Even though giving a conditional present is legally classified as a present, nevertheless since people don’t understand statements as including this way of giving, one cannot fulfill a commitment made to someone else in this manner.
The Rambam also writes (Mechiro 26, 8) that the basic rule that governs expressions that are used in agreements is that they are interpreted in the manner that they are customarily used by people in the place and at the time when and where the agreement was made. This is also the ruling of the Shulchan Aruch (CM 61, 16) who states, “Conditions in contracts are governed by intent and not by literal interpretation.” Thus, the previously cited Kesef Hakodoshim states that even though rental agreements require return of rentals in the same condition as they were received, nonetheless, tenants are not required to pay for concealed damages. Thus, your clause cannot be taken one hundred percent literally but only as much as custom dictates. Therefore, the answer to your question depends on how different the new tiles are, the location where they will be installed and the general condition of the apartment. For example, if the apartment is old and otherwise does not look perfect, you would have more leeway than you would have if you were renting a recently-renovated luxury apartment. Similarly, if they are in a corner you would have more leeway.
The second possible basis for your obligation, as we said, is if you broke the tiles yourself. If so, even if there is no clause requiring you to return the apartment in the same condition as you received it, you are required to pay since you were a mazik. Therefore, we have to consider whether the rules of mazik require you to replace all of the tiles.
In order to arrive at a decision we have to recall the basis for requiring one who damaged an apartment to pay for his damages. We wrote previously (See Money Matters page 8-9) that the Chafetz Chaim and Rav Chaim Brisker maintained that one does not have to pay anything if he broke a window (or a tile) in someone else’s apartment because the value of the apartment is not changed if it has a broken window, especially if it already had one broken window. However, as we wrote, batei dinim nowadays follow the ruling of the Chazon Ish (BK 6, 3) that in spite of the fact that the price of the apartment is not affected, the one who broke the window must pay because the owner of the house will need to replace the window.
Since, even according to the Chazon Ish, if you are the one who damaged the tiles you are required only to cover the landlord’s replacement costs, you could put in different new tiles if owners in general would not spend the money to replace the entire floor tiling in this situation.
Even though the criteria for determining whether you need to change all the tiles are technically different if the source of liability is an act of damage or if it is a clause in a contract, nonetheless, in most cases practically they will lead to the same result. Certainly, if owners would generally replace all the tiles then you need to do so both under the clause in your rental agreement and as a mazik. However, if owners would not replace all the tiles but people generally would say that the apartment is not in the same condition as it was when you received it, you would be liable based on the contract but not because of the laws of damages.
In conclusion: Whether you need to change all the tiles depends on several practical determinations, not on pure halachah. The determining criteria is whether, without replacing all the tiles, people in general (and not just you) would consider you as having returned the apartment in a similar condition to what it was when you began renting. If you go to beis din, they will make the determination after evaluating the situation.