Question
I received approval from the local authorities to add another floor onto my apartment. I hired a contractor to do the work which was due to start after Succos and take three months. Since it is very difficult to live in an apartment while construction is taking place, I rented an apartment in the neighborhood for four months, to be safe, and told the owner when I rented it that I needed it because of my renovations. I paid rent for the first month. After the Simchas Torah attack, the government forbade Arabs from entering to work and my contractor told me we will have to postpone the work until he can hire workers. Since we can’t build, I did not move into the apartment I rented and immediately informed the owner that for the meantime I don’t need the apartment, and he should find someone else. However, since tourists and avreichim stopped coming, both I and the owner couldn’t find a replacement and the apartment has been sitting vacant in the interim. The issue is the rental payment. Am I entitled to have my payment returned or do I have to pay for the entire four months even though I have no use for the apartment?
Answer
We should first note that the fact that you paid a month’s rent is very significant. If you hadn’t paid and had not performed any other act that constitutes a kinyan, you would have no problem canceling. The reason is that until a person performs a kinyan a rental doesn’t take effect legally.
Even without a kinyan, generally, when a person gives his unequivocal word, he is not allowed to rescind it, and if he does, he is called a mechusar amono-an unreliable person and subject to certain penalties. However, if he does so because of totally unexpected circumstances he is allowed to change his mind. (See our sefer, Mishpatei Yosher page 378 where the issue is discussed at length.) Furthermore, you would not have been liable for your landlord’s loss of income since the damages to him are only causative and one is not liable for causative damages that result from changed circumstances (called garmi be’oness).
However, by giving the owner a month’s rent you performed a kinyan of kesef that began the rental. Therefore, what you wish to do now is to cancel a legally valid rental agreement.
If you had agreed in a legally valid manner that the rental was conditioned on your ability to make renovations then you would again have no problem canceling and getting your money back since the Torah states that conditions can undo an action. However, even though you told the owner that the reason you are renting is because of your renovations, that does not set up a legally valid condition. (In order to make an action subject to conditions one must follow specific guidelines.) Therefore, we must clarify if or when, in the absence of legally valid conditions, it is still possible to invalidate a sale.
The Gemara (Kiddushin 49B) rules that sometimes it is possible to invalidate a sale even though the sale was unconditional. The case that is discussed by the Gemara is a person who sold his possessions and mentioned to the buyers at the time of the sale that he is selling because he is moving to Eretz Yisroel. The Gemara rules that if, due to unforeseen circumstances, he is unable to move there, he can cancel the sale even if the buyers paid him and performed a kinyan on their purchases. The reason is because it was perfectly clear to both the seller and the buyer that the only reason the seller was selling was because of his move. This situation is known as an umdeno.
What constitutes a clear indication is both critical and very delicate. It is critical because without it, it is not possible to undo a sale and it is very delicate because many factors have to be taken into consideration before we can determine whether the indication is clear enough. As we will see, this is the issue in your case and every other case where one wishes to invalidate a sale based on this “loophole.”
The way to decide whether the indication in your case is clear enough is by studying various cases that were discussed by the authorities.
In the case of the Gemara, even though there is no indication in the Gemara what was being sold, Rashi comments that what was being sold was land. The Rosh (Kiddushin 2, 15) explains that Rashi wants to teach us that if the items that were sold were moveable objects, even if they were all the seller’s moveable objects and even though the seller mentioned at the time of the sale that he was selling because he planned to move, the seller could not cancel the sale. He says that the reason is because it happens that people sell all of their moveable objects even though they don’t move, e.g., if they wish to renovate. Only if the item that was sold was a piece of land, since no one (in those days) would sell his land if he did not intend to move, can the seller cancel the sale. The explanation of the Rosh is ruled by the Ramo (CM 207, 3) and it is the law.
The principle that we can derive is that in order to cancel a sale based on this approach, it must be inherent in the actual transaction that the point mentioned at the time of the transaction was really critical and that the transaction never would have taken place otherwise.
An important illustration in the case of a rental is a case that is the subject of a dispute between the Ketsos (319) and the Nesivos (312, 7). The Ramo rules (CM 312, 9) that if A rented his house to B and at the time of the rental said he is renting to B only because he is his friend, if relations between A and B sour, A may evict B.
The Ketsos disagrees with the Ramo. He argues that there is nothing inherent in the rental that indicates that if they were not friends he would not have rented, since people rent to others who are not their friends. As we have seen, merely stating that the only reason he is renting is because they are friends does not suffice to incorporate a condition that can undo an agreement.
From the Ketsos’ differentiation between the situation of the Ramo and the Ramo’s source we can derive additional clarification about when this approach is valid. In the case of the Gemara (BM 101B) from which the Ramo’s ruling is derived, a person purchased a large quantity of wine but didn’t have a place to store it. He asked a single lady who had room if he could rent storage space from her but she refused. He then married her and when he asked her again if he could store the wine she agreed. After he brought in the wine, he divorced her. As a result, she had the wine removed from her property and placed on public property and the Gemara justifies her actions.
The reason she could nullify the unconditional permission she had granted (which granted him the legal status of a shoeil-borrrower on the facility since he performed a kinyan of chazoko) was because it was clear that she only gave permission because he was her husband. The Ketsos explains that in this case we take into account their previous dealings with each other to be convinced that she would not have given permission had he not married her.
Thus, we derive an important principle: in deciding whether there is clear-cut evidence: we don’t only consider the inherent nature of the contract but we also consider the background.
This is also the rationale for the answer the Nesivos gives to the Ketsos’ question. The Nesivos basically agrees with the Ketsos. In order to justify the Ramo’s ruling, he limits the ruling to a landlord who normally does not rent out this property. Since he only rented out the property to a renter who was his friend, we consider the circumstances convincing enough evidence that he only rented because the renter was his friend. If their relations sour, since he also said that he is renting because they are friends, he may evict him.
Thus, we have learned that in order to decide whether the fact that you told the landlord that you wanted to rent was because you were going to be doing renovations on your house, in itself would not suffice to allow you to cancel the rental. We have to consider whether it is possible that you would have rented even if you had not planned to renovate your house. Furthermore, we learned that we have to take into account many factors in determining the plausibility that you would have rented otherwise.
For example, if you had rented in a different town, especially a resort town, you would not be able (barring other factors) to cancel the rental since people rent for a few months in such a place, even if they aren’t doing renovations. However, since you rented in the same neighborhood and there doesn’t seem to be any other plausible reason you would have rented for four months, you are entitled to cancel the rental agreement.
We should note that since your question concerns a rental, the Maharshal (res 38) rules that you would be able to cancel your rental even if you were in the middle of the rental period. For example, if you had moved in and after two months it became impossible to build, you could move out and cancel the rental at that time. Of course, you have to bear in mind that you might not be able to find something to rent when building resumes.
In the case of the Maharshal, the landlord rented out his house for three years because he got a three-year position out of town. However, after a year and a half, the government, who was his employer, canceled his employment. He ruled that the landlord can terminate the rental in the middle of the rental period because a rental is a string of daily rentals, in contrast to a sale which is a one-time final acquisition.
In conclusion: Under the circumstances, you may cancel the rental and demand the money you paid for the first month back. Of course, you do need to pay for the rest of the term.
