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Shabbat Parashat Miketz 5779

P'ninat Mishpat: Unlivable Apartment? part I

(based on ruling 76116 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) rented out a new apartment, which was half of a larger apartment that was split up, to the defendants (=def), a new couple. They signed, a few weeks before the rental was to begin, a contract, which set the price at 1,900 shekels a month and provides for continued payment of rent and arnona even if def stop living in the apartment. The day before the beginning of the rental, def visited the apartment with her father and was distressed to learn that she was able to hear the conversations of workers in the adjoining unit. Def immediately decided to void the rental. Pl is suing for payment for the time that the apartment went unrented (renters came in only after four months). Def counter that the apartment is unlivable. Since they were not aware of the problem, the agreement was a mekach taut (agreement based on misinformation) according to Halacha and according to the Law of Contracts, which was referenced in the contract. Def are countersuing for 14,043 shekels for expenses made necessary in cancelling the rental and finding another one at the last minute, which is more expensive and worth less than the one in question, not including the unknown privacy issue. They also argue that the agreement to pay rent until the end of the year is a penalty clause of a one-sided contract that took advantage of an inexperienced young couple, and it is therefore not binding. Pl adds that they offered to do additional soundproofing at their own expense.


Ruling: The type of blemish that allows nullifying a binding agreement has to be one that is accepted among people in the country to be of such a degree. We understand that there are many apartments in Israel which do not have good sound insulation, including whole neighborhoods in Jerusalem. Therefore, def would need to prove that the situation in this apartment is worse than that large minority of apartments that are considered functional.

More importantly, even if the sound problem is severe enough, pl’s offer to do necessary soundproofing precludes def’s ability to back out. The Shulchan Aruch (Choshen Mishpat 232:5) rules that if the walls of a house that was sold are in disrepair, the seller can fix them rather than allow the buyer to void the sale. The Rosh, upon whom the Shulchan Aruch is based, only requires that the house is called a house when it was sold. The Rama (ad loc.) rules that the ability to fix the blemish applies only when the deficiency comes from an external source. However, when the problem is in something internal, such as unstable walls, the willingness to fix them is not a solution, because we consider the repaired house as a new entity, which is not the one that was sold. According to either formulation, problems with sound privacy are not considered ones that change the “name” of the apartment and the problems they cause are only external.

Next time we will deal with def’s claim that they could not allow fixing the walls.

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