Shabbat Parashat Tzav 5772
P'ninat Mishpat: Aborted Rental – part II(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)
[We saw last time that def is bound by the text he signed. Now we will deal with the question of whether he should be exempt due to the special oness.]
There is a major machloket among the Rishonim regarding a case where renters are prevented from continuing to occupy the home due to oness, whether the renter has to continue paying. The machloket depends on whether one who rents property is like one who buys it for the rental period, in which case inability to use it is his own affair and not grounds for withholding pay, or whether he is like one who is to pay for a service, in which case he is exempt if he is prevented from continuing due to an oness. However, that discussion is irrelevant in this case where def agreed to a condition that obligates him even in the case of oness.
Still the matter is not simple. The gemara (Gittin73a) says that in a case where porters accepted upon themselves “all oness” they are still exempt if an unusual oness occurred. The Rambam and Shulchan Aruch (Choshen Mishpat 225:3-4) learn from here a rule that when someone makes a special stipulation, it is binding only in regard to the type of case he had in mind when making the stipulation. Therefore, beit din must try to determine what def’s intention was when agreeing to the stipulation.
The majority opinion first pointed out that the language of the contract includes oness in the obligation but does not mention uncommon oness. In the type of religious community that def belongs to, divorce is indeed uncommon and unexpected. Since the indications are that at the time of the signing, def did not contemplate they would get divorced, he is not bound by the stipulation and is exempt from paying.
The minority opinion disagrees for two reasons. Firstly, it is hard to believe that the divorce came without sufficient warning signs to have made def aware it was a possibility. It is not fair for def to be optimistic in a way that impacts on pl. Secondly, it is not clear that there is an oness in regard to the ability to use the apartment. It is possible for someone from the family to live there or, if not, to find another party to step into their obligations.
[This editor’s gut reaction is like the minority opinion, but it is difficult to offer an intelligent opinion without witnessing the hearing personally.]
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