Shabbat Parashat Acharei Mot Kedoshim 5785

P'ninat Mishpat: Rent of an Apartment Without a Protected Room

Case: The defendant (=def) rented the plaintiff’s (=pl) apartment for 3,000 NIS a month for a year in a town in Northern Israel; def gave pl twelve post-dated checks. Soon after the rental began, war broke out. The apartment does not have a mamad (protected room); the best alternative is to go to pl’s nearby apartment. The town sustained occasional artillery damage, but the army did not move the residents out. For months, def stayed in the apartment, but suffered from trauma, which, she claims, caused her to lose her job; she moved back to her parents’ home in the spring. Def tried to bring renters to take her place, but those interested were not willing to commit until the end of the year and pl, who spent long periods in the army, was unwilling to deal with short-term rentals. (The contract allowed pl to reject subletters.)

Ruling: During the period that def lived in the apartment, she must pay in full. Even in cases (see below) that the renter can “reduce the rent” due to extenuating circumstances, that is when he is unable to use that which was rented, but here def used the apartment, even if with less than complete satisfaction.

Halacha discusses cases of agreements that became impractical because of outside influences. The Shulchan Aruch (Choshen Mishpat 334:1) rules that if a worker starts working but cannot complete the work because of an external extenuating circumstance (oness), the employer can stop paying him. The Rama continues by bringing a machloket about if when a renter dies during a rental period, his estate can discontinue payment; the final ruling is that if the renter already paid, he cannot demanded that it be returned.

The Shulchan Aruch (CM 321:1) says that if one rented a field and a makat medina (a broadly experienced oness, e.g., the drying up of a river) prevented its ability to be used, the renter can take off from that which is due. The Rama (CM 312:17) adds that in the case of a makat medina, even if payment was made, it can be retrieved.

It is difficult to determine whether this case is considered a makat medina. On the one hand, the town was not evacuated, as there were few attacks, and people were willing to rent the apartment despite the lack of a mamad. On the other hand, part of the reason the town was not evacuated is because most people have mamads, and some civilians did self-evacuate. Therefore, we treat this question as unsolved. There is also a machloket Acharonim whether the ruling of oness on rental is for any type of oness or only for the renter’s death (see Pitchei Choshen, Sechirut 6:(24)).

Standard halacha (see Rama, CM 312:7) is that the landlord can only refuse changing renters if the new one is problematic. However, here this is trumped by the clause in the contract that gives the landlord more discretion. His concern about his ability to handle switches is not random.

We accept the approach that giving post-dated checks gives the landlord the upper hand in case of disputes. Therefore, pl is considered muchzak for questions of safek.

Beit din imposed the following compromise. Def has to pay in full until the time of the beit din hearing (April 2024). From that time on, responsibility to rent out the apartment reverted to pl, and def was exempt from then on.

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