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Shabbat Parashat Vayechi 5778

P'ninat Mishpat: Return of Rental Check

(based on ruling 75111 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) rented the defendant’s (=def) apartment for 2,000 shekel a month, starting from Aug. 2013, and gave twelve postdated checks and a security deposit for the payment. The recipient name of the checks was left blank because def planned to sell the apartment shortly and transfer the rental checks to the buyer. Def sold the apartment in the winter and passed on the checks to the lawyer working on the sale to keep in escrow and transfer to the buyer when the transaction was complete. The final sale was delayed, and the checks remained in escrow. Therefore, def asked pl to pay him rent in cash for Jan. and Feb. without returning any checks. Instead of telling the truth, def told pl that he could not find the checks, and pl paid. The buyer used the security check (1280 shekels) to receive payment for the part of Feb. 2014 that, according to the buyer, the apartment was already his. Pl demands the amount he double-paid be returned and that def should present him the checks for Jan. and Feb., which are still in escrow, so that pl will no longer be in danger of having more money taken from him.    

 

Ruling: During the hearing, def admitted that pl had paid an extra 1,280 shekels due to his actions and promised to return them. Regarding the checks, beit din urged him to take steps to have them returned. Alternatively, he should receive a letter from the lawyer who is handling the escrow to explain what, if any, open issues remain between def and the buyer and whether there is any possibility that those checks will be used. Def did not do either, something which beit din finds disturbing.

Our case is similar to the discussion in the Shulchan Aruch (Choshen Mishpat 61:11), in which a borrower paid and the creditor refuses to return the loan contract. He rules that the creditor can be put in cherem until he agrees to return it. The Shach (ad loc. 15) says that if the borrower demands the document back, beit din can force the creditor to give it. In this case, too, def is in possession of both the cash payment and (through the escrow in which he put them) checks that can be used for another payment. Def cannot claim that it is out of his control because if he solves the issues between him and the buyer, the escrow will end.

We do find that if the creditor says he lost the contract in a manner that beit din believes, we can make the borrower pay without getting back the contract (Shulchan Aruch, CM 54:8). However, in this case, def lied when he said the checks were missing. Therefore, def has to either get the checks back or return the 4,000 shekels to which they correspond. Def has 14 days to return the checks, after which time he will be demanded to pay pl to protect him from danger (within 30 days).

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