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Shabbat Parashat Vayechi 5775

P'ninat Mishpat: Returning the Rent for a Store that Burned Down

(based on Shoel Umeishiv II:III:129)

Case:  Shimon rented to Reuven a sklad (I could not find this word in a Yiddish dictionary, but I believe, based on context, that it was an area of a large building that was used for commercial activity; I will refer to it as a store). The store and all its merchandise was burned, as was some but not all of other parts of the building. (No one is being blamed for the fire.) The question is whether Reuven can demand back the rent he paid in advance for which he did not receive usage.


Ruling:  The main halachic sources revolve around the Rama (Choshen Mishpat 312:17) in the context of the Shulchan Aruch’s discussion of various permutations when someone rented a house, which subsequently fell down. The Rama says that if a house burned down, it is like a house that fell down. The Rama continues that if the whole city burned down, it is a makat medina (plague to a broad area), and the landlord has to therefore return the rent for the time not used.

The S’ma (312:34) raises the point that this seems to contradict the previous passage, which implies that even without a makat medina, the renter does not have to pay for time he did not use. The Netivot Hamishpat (312:13) says that it depends on what object was rented. In general, if we take the approach that renting is like buying for the duration of the rental, then just as one who buys a house which later burns down has no claims on the seller, so too a renter cannot demand money back if the house burned down during the time he “owned it.” In contrast, when one rents a donkey for transport and the donkey dies, the carcass is at the disposal of the renter to sell and use the money to rent another one. Since there is a continuing obligation toward the needs of the renter, one cannot compare the rental to a sale with no further responsibility. Regarding a house, there is no such ongoing responsibility, and therefore we can compare it to a sale, where the buyer does not get a refund.

The Machaneh Ephrayim says that when the renter pays the rent in advance, we certainly consider that he has “bought” the rights for the whole period and cannot have complaints about lack of satisfaction for which the “seller” is not guilty. Another distinction raised is between cases of rental that become unfeasible in the middle but the renter received some benefit from the rental, and between cases where the rental proved valueless. For example, when one rents a boat and it sinks in the middle of the journey, he has gained nothing. In this case, though, even though much of the merchandise was destroyed, significant sales had already transpired. The Mordechai says that there is special reason not to return any of the rental fee in cases where the landlord has also lost in the process. That situation certainly applies here.

The querier also suggested that since several of the building’s rooms that Reuven did not rent were also destroyed, it was a makat medina and Reuven should get a refund. However, since several rooms were not burned, it is still possible to attribute the loss to Reuven’s bad fortune.

Therefore, it would seem that Reuven cannot demand a refund of the rent he paid, certainly considering that he is the one who is trying to extract payment.

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