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Shabbat Parashat Vayigash 5779

P'ninat Mishpat: Unlivable Apartment? part II

(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: Last time we saw that it was not proven that the sound problem was beyond the low extreme of the normal range and that the offer to have it fixed is generally valid. 

Def claimed that they were unwilling to have pl improve the soundproofing because they heard from people that pl is not a good person to work with. This is not acceptable. Backing out of a rental deal a day before it is supposed to start almost always causes a landlord a significant loss of money. One is not allowed to base such a decision on rumors.

Def was offered to try to sub-let the apartment or help pl find another renter and claimed that they refused because they did not want to harm anyone else. This is also not acceptable. They could have told potential renters of the problem and let them decide for themselves whether they can live with the deficiency or whether or not they were interested in having it soundproofed. Therefore, they are bound by the contract to pay until the end of the year or until a renter is found.

The clause requiring payment even if they do not occupy is not an unfair clause. When one rents an apartment, he makes a kinyan which is binding for that time period. There is a discussion among poskim about cases in which they cannot live there due to extenuating circumstances. However, generally, paying the full year without occupancy is not unreasonable (see K’tzot Hachoshen 316:1). Their claim to not having read the whole contract and being inexperienced is also unreasonable. They had the opportunity to read and consider; in this case, the wife’s father, who represented them in beit din, is a lawyer. Therefore, if they decided not to be more careful, that is their doing. 

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