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 wanted to buy the apartment and was willing to pay top dollar for it. However, C needed the apartment soon. The general law is that even though A may sell the apartment while it is rented to B, B retains his right to live in the apartment until the end of his contract. Thus C would have to wait to move in until the end of B's contract. However C could not afford to wait. A took B to our beis din and argued that even though it is not written in the contract, 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 make a stipulation before signing the contract but he said that the stipulation was not about A finding a buyer, but only if A himself needed the apartment to live in. Neither A nor B could bring any proof for his claim.
Answer (Part 2)
In the previous article we concluded that the renter can remain because of the principle of the Rashbo that if there definitely was a transaction and there is a doubt if there was a condition that would undo the transaction, we do not undo the transaction. In this article we will consider a second possible reason to rule in favor of the renter.
The second reason is based on the principle of miggo-if a person claims something and he could have made a better claim, then under certain conditions we believe the claim that he actually made.
In your case, the renter agreed to the landlord's claim that the landlord attached a condition to the contract that he had the right to terminate the lease in case he needed the property for his personal use, but not in case he wanted to sell the property as the landlord claimed. However, there was no indication in the rental agreement that the landlord had the right to terminate the lease prematurely under any circumstance. Therefore, the renter could have claimed that there was no condition in the rental agreement and he had the right to continue living in the property until the end of second year. The text of the rental agreement did not contain any conditional clause at all, which supported the claim that there was no condition. We will consider in this article whether this miggo is strong enough to allow the renter to continue using the landlord's property.
The reason that perhaps the miggo is not strong enough is because, as we mentioned in part 1, the landlord owns the property and the renter is making a claim to enable him to use the owner's property. In effect he is asking to receive use of the owner's property from the property's owner. A miggo can certainly enable one to keep what he already has (miggo lehachzik). But there is an issue as to whether a miggo can enable one to acquire something that he does not have. This type of miggo is called a miggo lehotsi.
The classic case of a miggo lehotsi is a lender who wishes to collect a loan from his borrower on the basis of a miggo. The Rishonim dispute whether one can use a miggo lehotsi and the Ramo (82, 12) cites both opinions. The consensus is that beis din will not force one to pay back a loan if the claimant's argument is a miggo since it is a miggo lehotsi. However, many, including the Shach (83, 9), maintain that the dispute is undecided and if the claimant somehow obtains the property of the defendant, beis din will not force the claimant to surrender what he obtained. Furthermore, if there are other reasons to rule in favor of the claimant, the Shach (82, 28) rules that a miggo lehotsi does enable the claimant to obtain new possessions.
As we mentioned, the classic case of miggo lehotsi is where a lender wishes to collect money, a movable object. The Ketsos (82, 13) maintains that the rule that on the basis of miggo we don't award a defendant's property to a claimant, applies only to movable objects because then the defendant's claim to ownership is supported by a chazoko that any object that is in someone's possession belongs to him (chezkas momon). However, with regard to immovable property, like the apartment in your case, we do say a miggo lehotsi since there is no chazoko that whatever is in a person's possession is his.
Thus, the Ketsos would rule that the renter can remain. However, since many disagree with the Ketsos, we cannot rely on this alone to rule in favor of the renter.
Another reason to side with the renter is that his position is supported by the rental contract. There is no mention of any stipulation in the contract and the rule is that we do say a miggo lehotsi if the one who brings the miggo is supported by a document. The source for this is the Gemara (Kesubos 85A) that rules that if a person paid a debt without witnesses and did not demand the return of the loan document prior to paying the lender, the lender can claim that the borrower owes him money for an additional loan since he has a miggo that he could claim that the loan was never paid. The reason he has this miggo is because the borrower does not have any witnesses to support his claim that he repaid the loan and the lender still has the loan document. Based on this Gemara, Tosafos (BB 32B) and others derive that we say a miggo lehotsi if the claim of the one bringing the miggo is supported by a document.
The Ketsos (83, 5) however, qualifies that not every document suffices to enable one to utilize a miggo lehotsi. He maintains that, for example in the case of a loan agreement, the loan document must be written in a manner that will enable the lender to not only collect from the borrower but even from those who purchased property from the borrower. (The Ritvo (Gittin 37A) cites Rashi as having said the same as the Ketsos.) He explains that the reason that the loan document must enable the lender to also collect from those who purchased property from the borrower is because otherwise the lender cannot be assured that he will be able to collect the loan since the borrower could sell off all of his possessions.
We note that if this is the rationale of the Ketsos, in your case, the rental contract does satisfy the condition of the Ketsos since, based on the text of the rental agreement, there is nothing that the owner can do to prevent the renter from using his property.
An additional reason to rule in favor of the renter is based on a Gemara (BB 32A-B) that discusses a case that is somewhat similar to your case. In the case of the Gemara, A challenged B who was living in a property. A claimed the land belonged to him but B replied that he had bought it from him and produced a sales contract. A replied that the sales contract was a forgery. B admitted that the sales contract was a forgery but claimed that he really bought the property from A and he had a sales contract but it got lost. Since the sales contract was lost, he produced a forged sales contract. The Gemara rules that B may remain in the property since he did not have to admit that the contract that he produced was a forgery.
The commentaries discuss the reason we believe B. One explanation that is given by Tosafos (BM 2A beg. words veze) is that in this case the miggo of B is that he could have just produced the (forged) sales contract and not said anything further. This is called a miggo dehavei shosik- a miggo that does not need a claim. Many maintain this type of miggo is better than a miggo which is based on another claim. According to the Nesivos (149, 9) and others this type of miggo can be motsi. You also have this kind of miggo since you did not need to say anything more than to show the rental agreement which did not contain any stipulation that would allow the landlord to end the contract prematurely.
Thus, we see that there are many opinions, who, for various reasons, allow the renter to remain in the property.
The Nesivos (Klolei Tefeso Mishpat Ha'urim 22) rules that if there is a dispute among the Poskim how to rule, we do not consider the landlord to be the muchzak and we allow the one living on the property to remain. Therefore, there is a second reason to allow the renter to stay.
Conclusion: The renter can stay for the duration of his contract based on two independent reasons. There is the principle of the Rashbo that we discussed in Part 1 that favors the renter and there are these various miggo arguments that we discussed here that again support the renter.
