Sources and Reasoning:
Are Renters Who Leave a Dwelling Due to an Ones Obligated to Pay Rent?
Regarding a renter who rented a dwelling and left it because of an ones, we find a dispute among the Rishonim. The Mordechai, Bava Metzia, siman 345, maintains that where a person rented a dwelling and died—an absolute ones—the heirs are exempt from paying the rent, just as in the law of hired workers whose employment was canceled due to an ones, in which the employer is exempt from paying the worker the wage he had undertaken to pay.
However, the Rashba, in a responsum, siman 1028, ruled concerning a renter who died that the renter must pay the full rent until the end of the rental period. This is not comparable to the hiring of workers that was canceled due to an ones. He explained as follows:
Since Shimon rented the house, it is like an absolute sale, and he became obligated for the payment whether he lives there or does not live there. Although we hold that rental accrues from beginning to end, the renter is nevertheless not entitled to leave at any time and calculate payment by the hours. Rather, he is obligated not to vacate his house before the end of its term.
A clear explanation of this dispute among the Rishonim is found in the Aruch HaShulchan, Choshen Mishpat, siman 334, סעיף 11, who writes as follows:
The first view maintains that just as an ones that occurs in an act, which neither party could have anticipated, is the worker’s loss, so too an ones occurring in the rental of a house is the landlord’s loss, for in this respect he is like a worker seeking to collect from another. Those who disagree maintain that this is not comparable to a worker, because rental is like a sale for a fixed period, and there is no claim of ones in this regard. Although in an actual sale, when an ones arises, the sale is void, that applies when the buyer has not yet taken possession of the purchase. But once he has taken possession and the transaction has been completed, a subsequent ones does not void it. Although it has been explained many times that rental is not comparable to a purchase in every respect, it is certainly comparable to a purchase with regard to securing the rental period, and is no less so than the law of ona’ah, whose law is like that of a purchase.
Regarding practical halachah, the Rema cites both views of the Rishonim and rules that the burden of proof rests upon the claimant. This is the wording of the Rema, Choshen Mishpat, siman 333, סעיף 1:
One who rented a house to live in and died during the rental period need pay only for the time he lived there, for the landlord is like a worker and should have stipulated otherwise. However, some disagree. Therefore, if he received the entire rent, he need not return anything; this appears correct to me.
In light of the above, it would appear that in the case before us, where vacationers canceled their tzimmer rental for Shabbat because of the ones of fear of the war and Hezbollah’s response, the law is that if the lessor received the rent, he need not return it; however, whatever the renters did not pay, they need not pay.
A Rental Canceled Because Damage Occurred to the Rented House Due to an Ones
However, this requires consideration, for the Rema himself, Choshen Mishpat, siman 312, סעיף 17, brings the ruling of the Mordechai that if the house burned down or collapsed, and likewise if the entire city burned down, the renter is exempt from payment. Even if the renter has already paid the rent, the lessor must return the money.
It must be considered how the Rema’s words in siman 333, סעיף 1, concerning a renter who left the house due to an ones, such as where the renter died, according to which the lessor need not return the rent, can be reconciled with the Rema’s words in siman 312, סעיף 17, that if the house burned down or collapsed because of war or any other ones, the lessor must return the rent to the renter even if it has already been paid to him.
Indeed, the resolution is clear and necessary: a distinction must be made between an ones affecting the renter, where the Rema rules that the burden of proof rests upon the claimant and the lessor need not return the rent, and a case of an ones affecting the house, where the house collapsed or burned down. In that case, the Shulchan Aruch rules that the lessor must return the money, since there is no house.
I saw that the Netivot HaMishpat, siman 334, se’if katan 2, explains this as follows:
As for the ruling above in siman 312 [סעיף 17], concerning a house that collapsed, that the renter is not obligated to pay, and we do not say that rental for a day is like a sale—the reason is straightforward. There, the deficiency is in the house, and it is like a defect in a sale and is subject to rescission, as Maharam Padua [siman 39] wrote, cited by the Sma, siman 321 [se’if katan 6]. Here, however, the deficiency is in the renter of the house; what concern is that of the landlord?
Renters Who Left Due to Fear of War—Is This Considered a Makkat Medinah?
However, we find that the law of makkat medinah differs from an ordinary ones. The Mishnah in Bava Metzia 105b states:
One who leases a field from another, and it was consumed by locusts or blasted by wind: if it was a makkat medinah, he deducts from his lease payment; if it was not a makkat medinah, he does not deduct from his lease payment. Rabbi Yehudah says: if he leased it from him for money, whether this occurred or that occurred, he does not deduct from his lease payment.
The Gemara there states: What is a makkat medinah? Rav Yehudah said: For example, when most of the valley’s fields were blasted.
The Mishnah and Gemara thus explain that when a makkat medinah occurs, it is considered an ones that justifies voiding a contract and obligation and exempts the lessee from payment. They further explain that a makkat medinah exists when most of the fields in the region have been blasted. The Shulchan Aruch rules this way in practice, Choshen Mishpat, siman 322, סעיף 1.
There is room to infer from this that when most residents fled the city, this is a makkat medinah and is deemed the misfortune of the landowner-lessor, who must return the money to the renter. But when only a minority of residents fled the city, if the renter fled, it is considered his personal ones, and the matter depends on who is in possession of the money.
This is also implied by the Darchei Moshe, siman 321, סעיף 1, who distinguishes between the rental of houses and the hiring of workers. So too, the Rema appears to rule in his gloss to the Shulchan Aruch, siman 321, סעיף 1:
That which we say, that if it is a makkat medinah he deducts from his lease payment, applies likewise in every similar case: wherever the matter is entirely lost and it is a makkat medinah, he deducts from his rent. But if it can be repaired through effort and ingenuity, he does not deduct from it (Maharam Padua, siman 39).
This is likewise indicated by the Rema’s gloss to the Shulchan Aruch, siman 312, סעיף 17:
If the house burned down, its law is like that of a collapsed house (Mordechai, chapter HaOmanin, and Teshuvot Maimoniyot, Mishpatim, siman 47). If the entire city burned down, it is a makkat medinah, and he deducts from his rent for the period he did not live there, whether he paid his rent in advance or not.
Accordingly, in the case before us, since most vacationers canceled their tzimmer rentals for that Shabbat in the city of Tzfat, this is considered a makkat medinah, and the lessor would ostensibly have to return the deposit he received.
I also saw that the eminent dayan Rabbi Yitzchak Tzvi Oshinsky, shlit”a, ruled in his work Orot HaMishpat, p. 284, regarding canceled vacations and getaways in the north, that if most residents fled the city, it is a makkat medinah and the lessor must return even the deposit he received from the renters.
Although most city residents did not leave the city, and only the vacationers canceled, it is nevertheless considered a makkat medinah, because renters who came for vacation should be compared to other renters who came for vacation, not to residents who live permanently in the city. I likewise saw that the eminent Rabbi Yehudah Silman writes in Darkei Choshen, Sechirut Po’alim, responsa section, siman 10, that in such a case the cancellation of vacations may be treated as a makkat medinah, since the overwhelming majority of vacationers cancel. I also saw in Minchat Asher, vol. 2, siman 120, that the relevant comparison is to vacationers; therefore, the matter should be treated as a makkat medinah.
The Distinction Between a Makkat Medinah Affecting Houses and One Affecting People
However, Maharam of Rothenburg, siman 388, indicates that even in a makkat medinah of this kind, the law differs, because one must distinguish between a makkat medinah affecting houses and one affecting people. In a makkat medinah affecting people—such as the case before us, where it causes people to flee because of fear—the lessor need not return the deposit he received to the renters.
This is the wording of Maharam of Rothenburg, siman 388:
It is written in the responsa of Maharam bar Baruch (Rothenburg, Prague edition), siman 388: Reuven rented a house from Shimon for two years and paid him the rent for the two years in advance. During those two years, the Jews fled the city because of danger to life, and he too fled and left the house vacant. Afterwards they returned, and he too returned, and he wishes Shimon to pay him for the time he was outside his house. Shimon responds: My house was available to you, but you fled, and I owe you nothing. It appears to me that Reuven’s claim is clearly valid, because it is a makkat medinah. Nevertheless, they divide the loss: Shimon deducts for Reuven half the time he was outside his house, and Reuven pays him the other half. For perhaps another Jew, upon whom the decree had not fallen, would have rented the house, since a minority of the community remained, and he would not have lost anything. Since there is room for doubt, they divide it.
However, it must be considered how the Rema’s words in siman 321, סעיף 1, and siman 312, סעיף 17, which imply that the renter is entirely exempt from rent and that the lessor must return the rent even if he has already received it, can be reconciled with the words of Maharam of Rothenburg, which explain that the lessor and renter divide the loss between them.
Indeed, the Ketzot HaChoshen addresses this in siman 322, se’if katan 1, and writes:
That which we say here—that if the affliction spread through most fields, it is a makkat medinah, and we do not follow the minority, and even if the rent was paid in advance it must be returned [unlike Maharam of Rothenburg]—is because there the affliction affects people and not houses. Since a minority of people remained, we say that this person who did not flee would have rented it. But here, the affliction is in the fields, and this field too was blasted along with the majority. Had he rented this field to another person, that person likewise would not have paid, since it was blasted.
Yet the ruling that they divide is difficult either way: if we are uncertain whether another Jew, upon whom the decree had not fallen, would have rented it, then since the lessor is in possession, having received the rent in advance, why should he deduct half because of uncertainty? However, the Hagahot Ashri, chapter Elu Metziot (Bava Metzia, ch. 2, siman 8), writes that where the judge cannot determine the matter because the halachah remains unresolved, Rabbeinu Chananel explains that it is a doubt and they divide. Thus, this also appears to be Maharam’s reason in writing that since there is room for doubt, they divide—meaning that the judge cannot determine it. But according to our ruling, that wherever money is in possession it remains there, even in an unresolved doubt, so too here the lessor need not return anything.
The Ketzot HaChoshen thus explains that even in a case of makkat medinah, one must distinguish between an affliction affecting people, where the lessor can say that he would have rented to the minority; in such a case, the lessor and renter divide the loss, and an affliction affecting houses, where he cannot say this. In the latter case, the lessor bears the loss and must return the money.
Similarly, the Machaneh Ephraim, Hilchot Sechirut, siman 7, distinguishes whether the makkat medinah affects the house or not. After citing Maharam of Rothenburg, he writes:
I saw that Maharashach, vol. 2, siman 98, was asked about Reuven, who rented a shop in the Kazazim market for two years. During that period, the king decreed that Kazazim may not reside in that market. He replied that this is a makkat medinah, and Reuven need not pay rent from that time onward. Maharash Yonah challenged this, arguing that since rental for its day is like a sale, it was the renter’s misfortune, and he brought proof from the responsum of the Rashba cited above. At first glance, this poses no difficulty for him, because Maharashach’s case was a makkat medinah, and where there is a makkat medinah, it is certainly the lessor’s loss.
But it still appears that in Maharashach’s case the rental should stand and the renter should be obligated, since the shop did not change from what it was and is fit for another occupation; only for this renter is it unfit. In such a case, one cannot say that it was the lessor’s misfortune. It appears that this is why the Mordechai wrote that if people fled because of a plague, they must pay the entire rent, as cited by the Shach, siman 334: because he maintains that the affliction was not decreed upon the houses but upon the people, and the lessor can say to him, “The house is before you.”
In light of the above, it follows that even where there is a makkat medinah and most renters canceled their tzimmer rentals, if the tzimmers themselves remain fit for habitation and only most renters left out of fear, as in the case before us, this is a makkat medinah affecting people and not houses. Therefore, the lessor need not return the money he received; rather, it is treated as an ones of the renters, and the burden of proof rests upon the claimant.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
