Hebrew | Francais

Search


> > Archive

Shabbat Parashat Vayigash | 5764

Pninat Mishpat



Binding Nature of Informing Landlords of Intention to End Rental - From Piskei Din of the Rabbinical Courts of Yerushalayim, vol. I, pp. 39-43
 
Case: A rental agreement was signed, under whose conditions the renters could decide to leave before the end of the lease with three months notice. The renters indeed gave notice that they intended to leave but subsequently decided to continue with the rental. However, when they informed the landlord of their intention to stay, the landlord said he would allow them to stay only if the rent was significantly increased.
 
Ruling: The gemara (Bava Metzia 67b) discusses a borrower who gave over his field to his lender as collateral in a place where the practice was that the lender cannot be removed until the end of the period of the loan. The gemara concludes that in a case that the lender agreed that he could be removed at any time, the agreement is binding only if a kinyan (formal act of acquisition) was done. The Rishonim dispute whether a kinyan is necessary only if the dispensation was made after the loan was made or even if it was decided before the loan was made and the collateral was given over.
 The Rivash (Shut 510) was asked about a case, similar to ours, where the renter informed the landlord of his intention to leave the land but later backed out before they acted on that decision and without a kinyan having been made. The Rivash felt that the aforementioned gemara is a precedent that in order to prematurely end a temporary right of one person on another person’s field, a kinyan is necessary to return the land to the possession of its original owner. Until that kinyan is done, all agreements to the contrary are void.
 On the other hand, the Machane Ephrayim (Sechirut 9) argues with the Rivash and says that since the field is the property of the landlord, he does need to reacquire it. He deflects the proof from Bava Metzia by saying that there the agreement to allow the borrower to receive his collateral back was premature, as it was done before the borrower was ready to return the loan and reclaim his field.
 In general, when one gives temporary control over his field to another for a set amount of time, as in a normal rental, he does not need a kinyan to get it back. In a case where there is an explicit stipulation in the contract that the rental can be terminated before the appointed date, there are two times that the rental ceases naturally, without the need for a kinyan. One is at the set date, and the other is at any date determined later according to the conditions set out. Thus, when the renters terminate the rental early, there should be no need for a kinyan.
However, in our case, the renters’ announcement of their intention to end the rental is not binding without a kinyan, because it was intended to announce a future end to the rental and not to take effect immediately. We saw that even the Machane Ephrayim, who usually did not require a kinyan, required one when the end of the field’s control by someone other than the owner had not yet taken effect. Thus, the renters can back out until the rental finishes.
Top of page
Print this page
Send to friend

Dedication

This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.,
Yitzchak Eliezer Ben Avraham Mordechai Jacobson o.b.m.

site by entry.
Eretz Hemdah - Institute for Advanced Jewish Studies, Jerusalem All Rights Reserved | Privacy Policy. | Terms of Use.