Question
I rented an apartment in Meron for the Lag Bo’omer weekend. I signed a contract and gave a down payment. However, due to the security situation the usual festivities were curtailed. The government announced that the burial place of Rav Shimeon bar Yochai will be off limits and only three groups of thirty select people will be brought to the burial place by the military. Since I am not one of these select people, I will not be allowed entrance to the burial place. Furthermore, I won’t even be allowed to enter the apartment that I rented since they will not allow people who don’t reside permanently in Meron to enter Meron. If they see me on the street I can be fined. Am I entitled to a return of my down payment and if not, am I liable for the balance?
Answer
You left out a critical piece of information: when you rented the apartment. It is critical to know if you rented the apartment before Simchas Torah or afterwards, especially if it was after our enemies began firing at the north. Therefore, we will address each of these possibilities.
In case you rented before the war, as many people who rented last year did, the current situation was totally unforeseen, an oness. Since we discussed this type of issue previously (See Money Matters Part 2, sections 41-42) when the unforeseen event was the outbreak of corona, we will review the principles briefly.
If you made a valid contract, your agreement was legally binding. Even if your contract was not valid, by making a down payment you made your rental legally binding. When a renter gives money to the owner, he acquires the rental since giving money is an act of acquisition (kinyan kesef). Before you gave the down payment (if your contract was not valid) you had a verbal agreement that you will rent the apartment, which is morally but not legally binding. By giving a down payment, you made your rental legally effective to the extent that the apartment’s owner could no longer rent the apartment to anyone else during the period that you rented it and you became obligated to pay the rent.
If nothing unforeseen had transpired you would be liable for the balance.
Your question in these circumstances is whether you are entitled to abrogate your agreement due to the unforeseen events.
In general, if a renter has a personal event that unexpectedly alters circumstances to the extent that the renter will not be able to use the rental, e.g., the renter passed away, there is a major dispute whether the renter is entitled to cancel the rental agreement. The position of the Maharam of Rottenberg (cited by Mordechai BM 345-6) is that the renter is entitled to cancel the agreement. However, the Rashbo (res. 1, 1028) rules that since a rental is like a temporary sale, the renter is not entitled to cancel the rental just like, a buyer cannot cancel a purchase due to unforeseen circumstances that came up subsequent to his purchase.
The Ramo (334, 1) brings the two positions without rendering a decision and rules that the money remains as it was: neither party must pay the other.
However, the above discussion is only valid when an unforeseen circumstance befell the renter personally, since then it is possible that Hashem wanted to cause him a monetary loss. However, in your situation the unforeseen turn of events affected an entire group of the population, in this case all those that rented in Meron, which is known as a makas medino. Since the renter is not blamed for the fact that he can’t use the rental he may be in a better position. Thus, since even when the renter had a personal oness we free him from making any further payments, certainly in the case of makas medino the renter does not have to make further payments.
Regarding the down payment that the renter already paid, there are differing opinions.
One major dispute is whether in the case of a makas medino, a renter can cancel the entire rental. According to the Maharam of Padua (res. 39), the renter is entitled to cancel the rental and thus have his entire down payment returned. However, the Ramo (CM 321, 1) maintains that he cannot cancel the rental but is only entitled to a reduction in price. Many later poskim (e.g., Sema (321, 6), Chasam Sofer (res. CM 161)) sided with the Maharam but a number of major poskim (e.g., Taz 321, Nesivos (321,1)) agree with the Ramo. Thus, this dispute is considered an undecided dispute known as a sefeiko dedino.
However, some of those who do not agree with the Maharam maintain that in this particular case the owner must return the down payment. For example, the Taz maintains that since it is not only that the renter cannot rent the apartment but the property has been rendered unfit for rental, the owner must return the renter’s down payment. However, there are poskim who follow the Ramo’s approach and maintain that the renter is only entitled to a reduction in the price.
The amount that the rent needs to be reduced according to the Ramo is not clear from the Gemara. However, many poskim, including the Ramo (Darkei Moshe CM 321) himself, maintain that the renter is entitled to a fifty percent reduction. The source is a responsum of the Ra’avan (res. 98) who argues that since the unforeseen event affected both the owner and the renter, they should share equally the loss that was suffered as a result of the unforeseen event.
Based on this, if the renter’s down payment was less than half of the original rental price, the renter cannot force the owner to return any money. The reason is that if one follows the approach of the Ramo the renter is only entitled to a reduction of half of the price. Even though if one follows the approach of the Maharam the renter is entitled to a refund of his entire down payment, the owner can retain up to half of the original price based on the Ramo’s position.
However, if the down payment was greater than half of the original price and the renter gave the down payment because he was obligated to do so according to the contract, he can force the owner to return the amount of the down payment that exceeds half of the price for the entire rental.
Thus, we have determined that those who rented and gave a down payment before the war do not have to pay anything more and if their down payment is greater than half of the price the owner must return the amount that is in excess of half of the entire price for the rental and, if it is not, the owner may keep what he received.
In case the renter rented after our enemies began firing at the north, the government’s closing off of Meron and Rabbi Shimon’s burial spot was not an unforeseen event at the time of the rental. However, we are still in a situation of a makas medino. Therefore, we have to investigate how to rule in the case of a makas medino that was not unforeseen.
The Gemoro (BM 106B) discusses a person who rented a field to grow garlic on the banks of the Malka Saba stream but subsequently the stream dried up because the waters were diverted upstream. Rava ruled that since the diversion was unusual and unforeseen and the stream’s diversion affected an entire population, it was a makas medino and the renter was entitled to a reduction.
From the fact that Rava prefaced his ruling by saying that the diversion was unforeseen, several Rishonim (Ra’avad brought in the Shitto Mekubetses, Me’iri) and the Machane Efraim (Sechirus 5) deduce that if an event that caused a general loss was not unforeseen, the renter is not entitled to a reduction. Even though it was obvious that the reason the renter rented the field was to plant garlic, if the diversion had not been unforeseen the renter was fully liable and not entitled to any reduction.
Thus, we can deduce that one who rented in Meron in a legally binding manner after the hostilities began is not entitled to a reduction in his rent and must pay whatever he still owes.
We note that this ruling is a particular case of a general principle. The principle is that one cannot alter or abrogate an agreement unless it is certain (an umdeno demuchach) that the agreement was made conditionally. An example that is ruled in the SA is one who sold movable items because he intended to move to E.Y. The Rosh (Kiddushin 2, 15), whose ruling is cited by the Ramo (CM 207, 3), deduces from Rashi that even if the seller mentioned at the time of the sale that he is planning to move to E.Y., he cannot cancel the sale if he was prevented from moving by unforeseen circumstances. The reason is that it is possible that he would sell his goods in any case since people sell movable items for other reasons.
Similarly in our case, people take risks and it is quite possible that the person who rented the apartment felt, at the time that he rented, that it was worth the risk to rent (probably the price was reduced to reflect the risk). Therefore, even though his hopes did not materialize, he is not entitled to a refund or any other alteration of his agreement just like one who purchases a lottery ticket is not entitled to a refund if he fails to win the jackpot and if he did not pay in full, he must pay the balance.
In conclusion: If the renter entered into the agreement and made a down payment before the outbreak of hostilities, he does not need to pay any more money. If his down payment was more than half of the price he is entitled to a refund. But if it is not more, he cannot demand a refund. If he rented after the outbreak of hostilities, he must abide by his agreement and is not entitled toa refund and if he did not pay in full he must pay the balance.
