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Shabbat Parashat Devarim 5780

P'ninat Mishpat: Overlapping Rentals

(based on ruling 71007 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) rented an apartment until Sept. 15 and paid the landlord in full (3,500 shekels per month). The defendant (=def), a friend of pl, decided to rent the apartment after pl and signed a contract with the landlord starting from Sept. 16th. In practice, pl left the apartment on Aug. 31, and def moved in on Sept. 1, with the permission of all parties. However, the two sides had argued in advance whether def would have to pay pl from Sept. 1 (1,750 shekels), as pl anyway had a place to go from that time. Def also could have stayed in his previous apartment until Sept. 15 and only did not want to wait until then because he had made an arrangement with his movers to move on Sept. 1. Also, pl had gotten def’s permission to keep his modem (worth 358 shekels) in the apartment for a period of time, and it cannot be found now.  

 

Ruling: If there were not a discussion between the sides in advance, then this would have been a classic case of one who lives in his friend’s house without permission and we would have had to determine whether this is a home that people usually pay for and whether the recipient was in need of its use (see Bava Kama 20b; Shulchan Aruch, Choshen Mishpat 363:6-10).

However, since there was a discussion in advance and pl expressed that he did not agree that def should use it for free, the pertinent ruling is of the Rama (CM 363:6) – one cannot be forced to allow someone to use his property for free. Although it is possible to force someone who does not lose anything as a result to allow someone to use his property, that does not apply when the property owner could have used it himself, including by renting it out to someone else. The K’tzot Hachoshen posited that the determining factor is the wording of the one who lets his counterpart in, and here pl was clear. It is not important whether def was clear that he did not think he needed to pay.

Regarding the modem, it is possible to discuss whether, as one who agreed to host the modem and was receiving the apartment specifically with the modem within, def was a shomer chinam (unpaid watchman) or a shomer sachar (a paid watchman). This determination would be impactful here because the modem was apparently stolen. However, def and his painter did not see the modem when they entered the apartment, and therefore it is likely that it was stolen before def moved in, possibly by the cleaning staff. In that case, def never began being a watchman in the first place.

Therefore, def will pay pl 1,750 for half a month’s rent and is exempt from paying for the modem.

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