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Shabbat Parashat Mishpatim 5777

P'ninat Mishpat: Too Late to Renew Rental? part II

(based on ruling 72079 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) rented out his apartment to the defendant (=def), a mother with three older children, for a year, ending on Aug. 3, 2012. Def could renew the rental for a second year if she informed pl by May 5, 2012. Not until pl requested at the end of May that she vacate at year’s end, did def write such a request. Def and pl met earlier in May. Def claims that at that time, they orally agreed to renew; pl denies this. Pl also claims the right to end the rental because def’s children’s behavior upset all the neighbors, and def refused to pay July’s rent up to and including the beit din hearing (early August). Def claimed she had trouble finding rent money because of legal expenses due to pl’s suit. Pl’s claims are: immediate vacation of the property (as most rentals are set by early Aug.); payment of July rent; $3,000 penalty for breach of contract as specified in the contract. [Reuven, who accompanied def to beit din, suggested a compromise, that def would remain for an additional four months. Pl accepted it; def did not.]


Ruling: [Last time, we saw that there were grounds for pl to end the rental. We continue now with practical steps.]

The hearing was held a week before the end of the first year of rental. While from a purist perspective, pl has the ability to remove def by Aug. 3, a dayan’s obligation includes incorporating elements of practicality and fair play. We cannot put def and her three children on the street. On the other hand, if we give too much time, the rental season will be over, and it would be unfair to pl to return his rental apartment when the pool of renters is small.

First we must review the sanctions for breach of contract. The contract states that late vacating of the apartment brings a fee of $50 a day for the first five days and $100 a day for every subsequent day. Additionally, any significant breach of contract carries a one-time charge of $3,000. Since this is reasonable for the refusal to pay or to vacate when legally demanded, the obligation is not precluded by the rules of asmachta (an obligation that one accepts in a not realistic manner). These demands should be tempered by the need to be fair and realistic in allowing for vacating in a way that both def can manage and pl can have a good chance to rent out during rental season.

Therefore, we present def with two possibilities. Pos. #1 (simple application of the law) – Def shall vacate by Sept. 15 (instead of Aug. 3) and pay rent at the normal rate until then. Def will pay $3,000 as stated in contract for breach of contract, which will also go toward pl’s legal expenses. If def will not vacate by Sept. 15, the further expense will be according to the contract.

Pos. #2 (fast vacating) – Def will vacate by Aug. 24, after informing pl of her intention to do so by Aug. 12, and after paying by then for rent until Aug. 24 (7,300 shekels). In this case, def will not pay for breach of contract. Since pos. #2 is beyond the letter of the law, if def wants to claim that she followed its provisions appropriately, the burden of proof will be on her
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