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Shabbat Parashat Tetzaveh 5778

P'ninat Mishpat: Backing Out of a Rental for a Good Reason – part I

(based on ruling 73045 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The defendant (=def), who was engaged, with a wedding scheduled for 13.01.13, signed a rental contract with the plaintiff (=pl) for a year at 1,900 shekels a month, starting from 01.01.13. The two sides were to meet to arrange an early transfer of control on 15.12.12, but a few hours before the meeting, def’s engagement was broken. Def informed pl that he would not be taking the apartment. Def was not involved in finding a replacement renter. Pl finally found one as of 01.03.13 for 2,100 shekels a month. Pl is suing for payment of rent until the time the new renter receives the apartment. Def feels that he is exempt, as clearly no one who rents an apartment to live in with his wife is willing to pay if he is not getting married.

Ruling: [The dayanim presented a long survey on the general topic of backing out of a transaction for a good reason. We will bring some highlights, and apply them to our case.]

There are ostensibly differing gemarot on the question of, when one does a transaction because he had a certain need and the need then disappears, whether he can back out of the transaction. Tosafot (Ketubot 97a) reconciles the gemarot based on the following distinction: if the intention of the transaction is obvious, the transaction is cancelled by the change without any previous statement; if his intention is apparent but not obvious, he needs to have expressed his intention; if his intention is not even apparent, a formal, valid condition is necessary. At first glance regarding our case, since it is apparent that def is renting due to his upcoming wedding and he mentioned it, a condition should not be necessary. The poskim distinguish between purchases of different types of objects, as for some a person may be willing to accept the transaction even if his main intention did not come to fruition. In this case, there is no reason one would willingly accept an apartment if he does not need it if he does not get married.

Tosafot (Ketubot 47b) points out that we must distinguish between a case of one giving a present and one involved in a two-sided agreement, for each side would like to make his own conditions on the agreement to which the other side would not agree. Therefore, the question becomes whether we can determine on objective grounds which side is expected to be adamant and which side flexible. This occurs when the risk of assuming or not assuming a condition is greater for one side than for the other. Let us give one example from the sources. When one sells a personal item because of need for money and he no longer needs the money, the seller would not agree to part with what was his, whereas the buyer could buy something similar elsewhere (see Mishneh Lamelech, Zechiya 6:1; Minchat Shlomo II-III, 134 argues). In our case, the loss to pl and def are similar. It is just a monetary question of who should lose the money for a rental apartment remaining unoccupied, due to the fact that it was reserved for def, who no longer needs it. Therefore, def cannot back out of the rental.

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Tetzaveh 5778
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