Question
I rented an apartment and we signed a contract for a two-year lease. After living in the apartment for half a year, I found something which is more suitable for me. I informed the landlord and asked if he would allow me to move out in a month. Immediately he agreed but a few days later he called to tell me he changed his mind. Is he entitled to change his mind or do we say that once he told me that I can leave, I was freed from my contract?
Answer
Your question is very basic because the answer depends on the very essence of a rental agreement.
It is important to preface that mechilo-waiving a right, does not require a formal act of kinyan (CM 12, 8). Therefore, if one simply states that he is mocheil a right, it is legally effective. For example, if a lender who does not have a formal loan-document, informs his borrower that he is absolved from his obligation to repay a loan, the loan immediately becomes void. If the lender should afterwards ask for repayment, the borrower is not required to repay the loan.
However, mechilo is only effective on rights and not on ownership. Since the lender only had a right to collect the loan, when he informed his borrower that he absolves his debt it is legally effective and his right to collect the loan is gone. However, mechilo does not change ownership. For example, if two parties agree to a compromise it is not effective (CM 12, 7) until they perform a formal act of kinyan, since in a compromise, people may give away what they own.
This differentiation is spelled out in a section of the Gemara (Kiddushin 16A) that deals with a Jewish slave, an eved ivri. The Gemoro states that since the owner of a Jewish slave owns him (in a sense) and doesn’t just have a right to receive his work, the slave needs to make a kinyan in order to terminate his servitude and should not suffice with the owner’s telling him to leave. If the owner just told his slave to leave, he can change his mind and force the slave to continue working.
With this in mind, the answer to your question depends on whether a rental agreement is an act of acquisition or an agreement to grant each other rights: for the renter the right to use the owner’s property and for the owner the right to collect rent. If a rental is an acquisition, then your landlord’s agreement to your request did not abrogate your rental agreement. But if a rental agreement is just an agreement that obligates the renter to pay rent and the owner to allow the renter to use his property then his agreement to terminate your rental was legally effective.
One indication that renting is an acquisition is that the Gemoro (BK 79A) writes that in order to legalize a rental agreement, the renter must perform one of the same three acts (kesef-pay money, shtar-a contract, or chazoko-performing an act that demostrates possession) that must be performed in order to acquire a property. This seems to indicate that one who rents a property acquires something in the rental (according to the terms of the rental agreement) for the duration of the lease and does not just have a right.
Many poskim cite the ruling of the Rivash (res 510) who was asked to decide a dispute between a renter and his landlord. In his situation a tenant prepaid rent on a property but the owner kept thwarting his plans to use the property. The renter then told the owner that since he is not co-operating, he should return his money and then we will cancel the agreement. However, before the landlord returned the money the renter changed his mind and said he wanted to continue with the rental. The Rivash ruled that the tenant is correct since he was the owner of the rental property for the duration of their agreement and speech is insufficient to relinquish ownership. A formal act of kinyan was required and since there was none, the rental agreement was still in effect.
The Rivash proves his point from a ruling of the Gemoro (BM 67B) concerning a borrower who gave his property as collateral for a loan with the stipulation that the lender can use the property for a fixed amount of years and reduce the principal of the loan accordingly. The Gemara rules that if the local custom was that the borrower could not terminate their agreement prematurely by repaying his loan, then even if the lender verbally gave the borrower permission to repay earlier, he may change his mind. The Rivash argues that a renter’s possession of the rental property is stronger than a lender’s possession of property that he received as collateral on a loan. Therefore, if an act of kinyan is required in order to terminate a lender’s use of property that he received as collateral, certainly an act of kinyan is required in order to terminate a rental agreement.
The Rivash also cites as proof the ruling of the Gemara (BM 56B) that the laws of ono’o, overcharging, apply to rentals. Even though the Torah wrote these laws only in the context of a sale, the Gemara says that since renting is a temporary sale these laws apply to rentals as well.
Many later poskim (e.g., Tashbatz (4, Tur 2, 22), Maharshdam (CM 174), Sema (189, 1) and Ketsos (316)) cite and rely on the ruling of the Rivash. According to these poskim, your landlord has the legal right to change his mind since you did not make a formal act of kinyan (such as a suddar) to formalize the termination of your rental.
However, there are quite a number of poskim who disagree. The Sha’ar Mishpot (315, 1) disagrees and argues that when one rents a property the landlord retains ownership of the property and merely grants the renter use of his property. He cites as proof the ruling of the Rambam that if an ownerless object enters a rented property the owner and not the renter acquires ownership of the object because it is on his property (the kinyan of chotseir). He also cites the explanation of Tosafos (BM 56B) that the statement of the Gemara that a rental is viewed as a temporary sale applies only with respect to the laws of ono’o. Furthermore, it is not the source for the Gemara’s ruling that the laws of overcharging apply to a rental. Rather the source is an extra word in the Torah and this is just the rationale for the Torah’s ruling. However, in general the laws of acquisition and rentals differ from each other.
The Machane Efraim (Sechirus 9) and Avnei Choshen (315, 1) also agree with the Sha’ar Mishpot and they refute the proof of the Rivash because in the case of the Gemara, where the borrower gave his property as collateral, the lender merely gave his word that in case, at some future time, the borrower brings him money, he will terminate the loan and return the property. However, in practice the borrower did not bring any money before the lender withdrew his agreement. Therefore, there never was even a verbal cancellation of the rental.
Based on this differentiation, the Sha’ar Mishpot agrees with the Rivash’s ruling in his case, because the renter only asked for the return of his money but did not immediately cancel his rental. However, he maintains, unlike the Rivash, that if the renter had said that he hereby cancels their agreement and the money that he gave to the owner should now be treated as a loan, then the rental would have been canceled.
Thus, the Sha’ar Mishpot, Machane Efraim and Avnei Choshen all disagree with the Rivash and maintain that one can verbally cancel a rental agreement.
Several Roshei Yeshivo maintain that this dispute is already a dispute of the Rishonim. For example, Rav Shmuel Rozovsky (Shiurei Rav Shmuel BB 1, 211) says that this issue depends on whether we view the concept of rental as an acquisition of the property for certain benefits, or a right to use the property because, as we explained at the outset, mechilo can cancel benefits but not ownership. He argues that this issue is the subject of a dispute between Tosafos and the Ramban, with the Ramban maintaining that one who rents acquires ownership.
Rav Elchonon Wasserman (Kovetz He’oros 53, 5) also writes that this issue depends on a dispute between the Rishonim. However, unlike Rav Shmuel, he proves that the Ramban, even though he considers renting as ownership for a right, maintains that one pays just for use and therefore the Ramban agrees with the Machane Efraim that one can cancel a rental verbally. According to him, those who disagree with the Ramban are the Re’o and the Rash.
If one follows the approach of Rav Elchonon, this dispute is discussed by the SA since the case that they disputed is where a person rented a house which became unusable (e.g., it burned down) during the rental period. The Ramban rules that the renter is not required to pay rent for the period following the fire whereas the Re’o rules that he is. The rationale of the Re’o is that the rental property belongs to the renter and thus if it burns down or collapses, the renter, as the temporary owner, bears the resultant loss. However, the Ramban maintains that since the renter only pays for use and he can’t use the property, he does not have to pay rent if the house collapsed.
The SA (212, 17) rules that the renter is entitled to demand the return of the money that he paid for the period when the rental is unusable. According to the Sema (312, 34) the Ramo cites both opinions and does not decide the issue. Therefore, neither side can force the other to surrender any money.
In conclusion: Your question depends on a major dispute concerning the legal status of a rented property. Since this issue has not been decided, you may leave without paying for the balance of your lease. However, if you had prepaid you would not be able to recover any money.
