Question
I bought an apartment a few years ago in Israel. The apartment was supposed to be completed by May 2023. In our contract it states that if by August 2023 the apartment is not ready for occupancy the builder will pay my rent. He wasn't ready by August either. Then in October the war broke out. At first there were no workers and even now the cost is much higher and he is still not finished. The builder agrees that for the period before the war he is liable but he claims that after the war started he is not liable because the war and its repercussions were unforeseen. I argue that the facts are that I am still paying rent only because he did not keep to our agreement so why should I lose? Who is correct?
Answer
There are Gemaras and poskim that deal with similar situations but not exactly your situation, so we have to be very careful to find the correct analogy.
A case that is discussed by the Yerushalmi and is cited by many Rishonim concerns an eved ivri-a Jewish slave who is supposed to work for six years. The Gemara rules (Kiddushin 17A) that if the slave was sick and therefore could not work for up to (and including) three years, he does not have to work after the six years in order fulfill his obligation to his owner. However, if he runs away from his owner, he must work afterwards to compensate for all the lost time.
The Yerushalmi (Kiddushin 1, 2) rules that if the slave runs away and then becomes sick for even less than three years he must still compensate his owner for all of the lost time, including the time that he was sick. The Yerushalmi states as its reason that the owner can claim that perhaps the slave would not have become sick had he not run away. Furthermore, even if he first took ill and then ran away while ill, he must compensate for the all of the time, including the time he was sick, because the owner can claim that perhaps he would have recovered quicker had he not run away.
The Gemara (BM 77) rules that a worker who quits his job in a manner that will harm his employer must compensate his employer for the additional amount that the employer had to pay to his replacement. However, if he is forced to stop temporarily or permanently because of unforeseen circumstances he has no obligation to his employer.
The Tosafos Yerushalaim, based on the ruling of the above Yerushalmi, rules that if the worker quit and then an unforeseen circumstance occurred that would have anyway forced the employee to quit, the employee must still pay the penalty, even though he could have stopped working anyway when the unforeseen circumstances occurred.
The Minchas Pitim (333, 5) cites the ruling of the Tosafos Yerushalaim and explains that the rationale is that if a penalty is imposed on someone for violating his agreement, the fact that afterwards other circumstances occurred that entitled him to violate the agreement without a penalty does not remove the penalty. Once a penalty is imposed, the only way to remove it is by fulfilling it.
Support for this approach can be garnered from a ruling of the Ramo (end res. 50). He was asked concerning a community that hired a rabbi and then abrogated their legally binding agreement. He ruled that since the law is that an employer who fires an employee must pay the employee until the employee can find alternative employment, the community must pay the rabbi even if, after they abrogated their agreement, a plague broke out making life in the town impossible. He explains that even though, had the community canceled the rabbi's appointment after the plague broke out, they would not have to pay the rabbi anything further, since the penalty had already been imposed prior to the outbreak of the plague they must continue paying the penalty that was imposed. This is exactly the same rationale as the Minchas Pitim and teaches us an important extension, as we will see now.
The Ramo rendered his decision without citing a source. The Sha'ar Mishpot (333, 1) searched to find a source for the Ramo's decision and finally concluded that the Yerushalmi seems to be the source of the Ramo. However, he disagrees with the Ramo's application. He argues that the Yerushalmi writes that its rationale for obligating the slave to work even for the time that he was sick is because the owner can claim that maybe the slave would not have taken ill had he not fled. He argues that this can only apply if the unforeseen circumstance affected one person since then maybe there is a connection between the actions of the person and the results. However where an entire group of people like an entire town is affected, one cannot argue that the plague resulted from an event that involved only one person. (One can disagree with this argument because in this case the entire community was the rabbi's employer. Therefore, the community is like one individual. However, that is not important for this article.)
We see that the Sha'ar Mishpot understood that the reason for the Yerushalmi's ruling is exactly as it says, that is, because the owner had a specific argument against the slave, and not as the Minchas Pitim and the Ramo understood that it is because once a penalty has been imposed it remains, even if unforeseen events transpired afterwards.
This disagreement seems critical in your situation because if the Yerushalmi teaches us that once a penalty is imposed it remains in place even when there are unforeseen circumstances, as the Ramo and Minchas Pitim understood, then your contractor must continue paying your rent.
However, if we follow the approach of the Sha'ar Mishpot that the argument of the Yerushalmi is that we really suspect that the slave's illness is due to his running away then perhaps, as the Sha'ar Mishpot argued, we do not have a source to attribute the builder's failure to find workers to his failure to give you your apartment on time, since his failure is not due to a personal event but is due to a national situation.
However, the approach of the Sha'ar Mishpot is extremely difficult because the Yerushalmi's argument is very weak. Recall that the rule is that hamotzi mechveiro olov horayo-one who wants to force someone to surrender something must prove that he is entitled to that thing. In the case of the Yerushalmi, the owner's argument that the slave's actions caused his illness is far-fetched. This is especially problematic since the Yerushalmi rules this way for any kind of sickness. Since the likelihood that sickness results from fleeing is very low, how can an owner force his slave to work extra years based on this argument?
In order to understand the Yerushalmi's argument, it is important to introduce another section of Gemara (BM 106A), which bases its ruling on arguments similar to those of the Yerushalmi. The Mishna rules that if one rents a field with the stipulation that the rent will be paid with a specific amount of the crop (known as chakirus) and then, due to a makas medino-an unforeseen general condition that adversely affected all the fields in the proximity of the rented field, the field did not yield its usual crop, the renter is entitled to a reduction in his rent. The reason is because the unforeseen circumstance could not be attributed to the renter since it affected everyone in the area.
The Gemara, however, rules that if the renter's agreement with the owner was to plant wheat and he planted barley instead, even though the unforeseen circumstances affected all the crops in the area including both wheat and barley, nevertheless, the renter is not entitled to a reduction in his rent. The Gemara says that the reason is because the owner can tell the renter that perhaps had he planted wheat his crop would have been unaffected because the owner, thinking that the renter planted wheat, only davened for a good wheat crop and not for a good barley crop.
The Maharit (res 2, CM 109) asks that the argument of the owner is quite far-fetched since everyone in the area was affected. He answers that the reason mentioned in the Gemara is only part of the Gemara's rationale. The real reason is that under the terms of the agreement the renter owed the entire rent. The only reason he may be entitled to leniency from his contractual obligation is because of the unforeseen circumstances that occurred. The ruling of the Gemara is that if the renter did not conform to his agreement he is not entitled to relief from his contractual obligation. Therefore, he must pay the entire rent that he obligated himself to pay. The reason mentioned by the Gemara is just to have some justification for attributing the crop's failure to the renter's violation of their agreement. However, it is not the reason for requiring the renter to pay in full.
This approach explains the Yerushalmi as well. The slave was obligated to work for six full years under the terms of their agreement. However, he wishes to be relieved of his obligation due to his illness. The Yerushalmi rules that if he did not abide by their agreement and ran away, he is not entitled to relief from his obligation to work for the entire six years.
If we understand the Yerushalmi in this manner, then the fact that it is highly improbable that the slave's illness was a result of his fleeing is not relevant since it is not the real reason to force the slave to work additional years. It serves merely as justification for denying the slave relief from his obligation but it is the original obligation that forces the slave to work the full amount.
If we understand the Yerushalmi in this manner, the Ramo's ruling is supported by the Yerushalmi since the congregation did not abide by their agreement. Therefore, it was not entitled to relief from its obligation to pay the rabbi even when the town became unlivable.
Similarly, in your situation, the builder obligated himself to pay your rent in case he was late. He wishes to be relieved of his obligation due to the unusual events. However, since he did not abide by the agreement even before the unforeseen events transpired, he must continue paying your rent until he hands over your apartment.
We add that in your case even the Sha'ar Mishpot agrees that the builder must continue paying your rent. This is because the only reason he disagreed with the Ramo's ruling is because in the case of the Ramo, the fact that the community fired the rabbi did not cause the rabbi a loss when the city become uninhabitable. The Ramo maintains that if the rabbi had been serving but he and the community had fled from the plague the community would not need to continue paying the rabbi after he stopped working. It is only because they had to pay even though he was not working that they needed to continue paying according to the Ramo.
The Sha'ar Mishpot argues that since the community's firing of the rabbi did not cause him a loss once the plague set in, the community should not need to continue paying his salary. (We note that the Erech Shai (333,1) disagrees with the Sha'ar Mishpot because he understood that in the Ramo's case the community's firing of the rabbi did cause him a loss even after the plague set in.)
However, in your case if the builder had finished on time you would not need to rent now. Therefore, the builder's failure to finish on time, when he did not have any excuse for being late, is still causing you a loss now when he has an excuse for being late. Therefore, even the Sha'ar Mishpot agrees that you are entitled to rent until your apartment is complete.
We note that this is the way the Sha'ar Mishpot understood the Yerushalmi - that the reason the slave must serve longer is because his escape caused his sickness. In your situation, your builder's tardiness did not cause the lack of workers but it is the reason that the lack of workers is causing you now to rent an apartment.
In conclusion: Your builder must continue paying your rent.
