Question
I am a dayan in beis din and we had a difficult question. B rented an apartment from A for a year with an option to remain for a second year under the same conditions as the first year. Midway into the second year, A found C who was very interested in buying the apartment and was willing to pay top dollar for it. However, C needed the apartment soon but the law is that even though A may sell the apartment while it is rented to B, but B retains his right to continue living in the apartment until the termination of his contract which meant that C would have to wait to move-in until the end of B's contract which he could not afford to do. A took B to our beis din and argued that even though it was not written in the contract, nevertheless, A stipulated verbally before signing the contract that the option for the second year was valid only if he did not find a buyer for the apartment. B agreed that A did insert a stipulation before signing the contract but claimed that the stipulation was not that the option was only in case A did not find a buyer, but only in case for some reason A himself needed the apartment to live in himself. Neither A nor B could bring any proof for his claim.
Answer
In this article we will discuss this issue from one angle and the coming article will BH will consider your question from a different perspective.
In general, when one has a dispute that cannot be resolved we decide in favor of the one who is the muchzak-the one who is entrenched in the property. Concerning disputes between a landlord and his tenant the landlord is considered the muchzak since he is the owner of the property whereas the renter merely has temporary rights to use the property. This can be derived from the Gemoro (BM 110A) that discusses a disagreement between the owner of a property and his lender who occupied the property as repayment for the loan. The dispute concerned how many years remained for the lender to occupy the property before the loan was completely repaid. The conclusion of the Gemoro is that the owner prevails since as the owner of the property he is the muchzak and the tenant is considered the motsei-the one who wishes to change the circumstances, since the owner has greater possession of the property than his tenant.
SA invokes (317, 2) this principle in a dispute involving a tenant who had a ten-year contract but the contract was not dated. The landlord claimed that ten years already elapsed whereas the tenant claimed that he had one year remaining under the terms of the contract. Based on this principle, SA rules that the landlord prevails. The Ramo (312, 16) states the principle explicitly, "In general, in disputes between a landlord and his tenant concerning the length of the lease, the landlord prevails." Thus, it would seem that we should rule in favor of A, the landlord.
However, in your situation B has a valid lease that does not include any conditions and the entire dispute between A and B concerns the stipulation which A made. This case is very similar to a dispute that was decided by the Rashbo. Since this is a basic ruling and there are important issues concerning the extent of the Rashbo's ruling, we will give the background for the Rashbo's ruling.
The Rashbo (res. 2, 229. This responsum is cited by the Beis Yosef (29, mechudash 13 and 46. 36) and discussed at great length by the Mishna Lamelech (To'ein Venitan 15, 11, beg word mei'ato).) was asked to rule concerning the ownership of a vineyard. In his case, Y (Yosef), who was certainly the original owner, claimed that he borrowed money from C (Chaim) and gave the vineyard to C to use until Iyar and gave C a sales document in case he fails to repay the loan by Iyar. However, if Y repays the loan by Rosh Chodesh Iyar, C must return the vineyard and the sales contract to him since the vineyard was only collateral for the loan. Y further claimed that subsequently he attempted to repay C before Iyar but C refused to accept the payment and Y brought two valid witnesses to support his claim
C retorted that there was no loan. Rather there was an unconditional sale and the testimony of Y's witnesses was invalid and C in turn brought two witnesses to support his claim. This case was first brought to a beis din which ruled in favor of Y and ruled that C must return the sales document to Y and accept repayment and return the vineyard. They based their ruling on a ruling of the Gemoro (Kesubos 19B) that if there is a dispute if ownership was transferred and each side brings two valid witnesses to support his claim, we leave the item in question with its original owner. Since Y was the original owner of the vineyard and the unresolved issue was whether ownership was transferred to C, we rule in favor of Y, the original owner.
The Rashbo found many flaws with beis din's ruling. One of these which bears heavily on your case was beis din's comparison to the case in Kesubos. The Rashbo differentiates that in the case under consideration, since initially C used the vineyard with the express approval of Y and performed an act of kinyan which would enable him to acquire the vineyard and the only issue is whether he must return the vineyard, C has the status of a muchzak and not Y as the beis din thought. He adds that this ruling is certainly correct according to those Rishonim, like Rabbeinu Tam (others say Rabbeinu Chananeil), who maintain that when each side has two valid witnesses to support his claim, we leave the property with whoever has it and don't take into account who is the muchzak (trei uteri sefeiko deorayso) since two witnesses are believed in general. Therefore, the fact that someone is a muchzak does not grant him greater credibility
The Mishna Lamelech questions that perhaps the ruling of the Rashbo is confined to disputes where each side had two witnesses to support his position but not in a case like yours where no one has any support for his position. We should note that the Rashbo certainly indicates (This was noted by the Kuntress Hasefeikos (7, 9) as well.) that his ruling applies even if there are no witnesses to support either disputant since he merely adds that certainly his ruling is correct if each side had the support of two witnesses but it is clear that his ruling was given even where the sides in the dispute do not have the support of witnesses. The Mishna Lamelech as well proves that the poskim also understood that the ruling of the Rashbo was given even in cases where the disputants do not have witnesses to support their contention. For example, he cites a ruling of the Ra'anach (1, 77) in the case of a woman who gave someone a document stating that she is hereby giving him a present on condition that he will say kaddish for her after she passes away and after she gave him the present there arose a doubt whether the present was conditional upon the recipient saying kaddish every day or just for one time. The Ra'anach ruled that since the present is certainly valid and the only issue concerns the nature of the condition, we can't force the recipient to say kaddish more than one time.
Having established that the Rashbo applies in cases like yours where neither side has witnesses to support his claim, we must understand the rationale for the Rashbo's ruling. The commentaries are perplexed with the Rashbo's ruling since it seems that his reason is because the C was using the vineyard with Y's approval, which does help to settle disputes involving ownership of moveable items (tfeeso bershus). However, the commentaries reject this explanation because they prove that this principle does not decide disputes involving ownership of or rights to immoveable items like a vineyard.
The Tokfo Cohein (58) discusses this question using a different (Many responsa of the Rashbo appear in a number of versions since they were collected from various sources.) version (1, 972) of the Rashbo's responsum. In this version even if the seller, Y repays the loan, C would only need to return the vineyard after the loan was repaid but he certainly owned the vineyard until the time the loan was repaid. Since C owned the vineyard for the initial period and the issue is only whether this period ended or not, C is the muchzak.
The Kuntress Hasefeikos (7, 9) and the Imrei Benoh (Dayanim 41) agree that if the situation was as understood by the Tokfo Kohein he would be correct. They only disagree because they note that according to the version of the Rashbo's responsum that we cited earlier (2, 229) the Rashbo ruled that even in case the agreement was that if Y returned the money the sale was retroactively cancelled, nevertheless Y prevails and the approach of the Tokfo Kohein does not explain this ruling.
Before continuing with the rationale of the Kuntress Hasefeikos, we should note that this comment is crucial to decide your question since in your situation the renter certainly rented until the owner wanted to sell the apartment and there is no retroactive cancellation. Therefore, the Tokfo Kohein and the Kuntress Hasefeikos and Imrei Benah all (and everyone else) agree that according to the Rashbo the renter can remain.
The Kuntress Hasefeikos claims that the rationale of the Rashbo is based on the Gemoro (Kesubos 19B) that says that we view transaction (which is the rental, in your situation, or the sale in the case of the Rashbo) and the condition as two distinct interactions between the two parties. Thus, even in the case of the Rashbo where the condition if it existed served to negate the entire sale (The condition in question was that if the seller returns the money he received from the sale, the sale would be cancelled.), we view the sale and the condition as two distinct interactions between the seller and the buyer. Since both parties agreed that the sale took place, we have no doubt that there was a sale and the only disagreement is whether there was a condition which would undo the sale. Similarly in your situation the apartment was certainly rented for a second year since that fact is undisputed. Therefore, when we have a question concerning the nature of the condition that was imposed by the seller, the fact that the owner is considered the muchzak is irrelevant since that was changed since he certainly rented the apartment to the renter for a second year. Therefore, the renter has the status of a muchzak and the issue is if that was changed because perhaps the owner imposed a condition which would serve to terminate the rental. Since the renter is the muchzak and it is uncertain if that changed because of the condition the renter prevails.
The Imrei Binah notes that the Tokfo Kohein and Kuntress Hasefeikos understood that the only reason the Rashbo ruled in favor of C is because C already was using the vineyard but even the Rashbo would not have awarded C the vineyard if Y would have been using the vineyard. This is also the ruling of the Mahara Sasoon (res 155) and the Bo'ey Chaiyi (1, 88) and many others. They draw support for their position from the expression of the Rashbo in his ruling since he wrote (2, 229) that because C was properly using the vineyard since Y gave him permission and Y wants to force him to vacate, we allow C to remain. This implies that if C would not have been occupying the vineyard, beis din would not have allowed him to come and replace Y.
Similarly, the Maharshach (volume 3, Nosafos 1) ruled concerning A who sold a number of houses to B and turned over the deed to these houses to B. When B came to ask A to move out, B replied that he stipulated that the sale was conditioned on his moving to Eretz Yisrael which B vehemently denied. The Maharshach says that one cannot invoke the Rashbo to support B's position since a was still living in the houses and one can only invoke the Rashbo to remain in a property but not to take over a property.
However, the Imrei Binah cites a ruling of the Maharshdam (CM 423) that seems to indicate that based on the ruling of the Rashbo that a doubtful condition cannot negate a certain transaction we even award the recipient of the transaction land that he did not previously own. In the case of the Maharshdam A owed B money which was due to be paid on Rosh Chodesh Nisssan. However, B agreed that if C would pay D a certain amount before Rosh Chodesh Nissan, then A would be free from paying B. In the end there remained a doubt if C paid D. The Maharshdam invoked this responsum of the Rashbo to force A to pay B. The Imrei Binah says that this shows that the Maharshdam understood that the rule that a doubtful condition cannot undo a certain transaction applies even in order to give one possessions that he did not own previously.
The Imrei Binah qualifies that the key to decide if in a particular case the one who has a certain transaction can even force someone who has a doubtful waiver is the expression that the parties used when the condition was imposed. For example, in the case of the Maharshdam the implication from the expressions of the parties was that fulfillment of the condition would free A from paying B only if it is certain that C paid D. This implies that the status was that A was obligated to pay B and the condition allowed A to free himself from his obligation. That is why the Maharshdam could invoke the Rashbo to force A to pay B. However, if A's obligation was only based on the fulfillment of a condition A would not have been obligated to pay B if it was not certain that C did not pay D.
However, most poskim disagree with the Imrei Binah and rule that the Rashbo only allows one to remain in a property. In your situation, the renter occupied the property and the issue was only if he was required to vacate the property. Therefore, according to all the Rashbo's ruling applies and the renter may continue living in the property.
