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Shabbat Parashat Beshalach| 5768

P'ninat Mishpat

Returning Pre-Payment for a Rental  (based on Halacha Psuka, vol. 37 – condensation of a p’sak from Piskei Din Rabbaniim, vol. XVII, pp. 69-78)


Case: The defendant (def) rented an apartment to the plaintiff (pl) for a year and paid in advance along with a security deposit. In the middle of the year, pl returned the keys to def and left the apartment. In the meantime, def rented out the apartment to someone else. Pl demands the rental money corresponding to the time when the rental was no longer active. Def responds that ending a binding rental requires a kinyan (an act of finalization) which never took place, so that pl remained the renter even when he stopped living there.


Ruling: The Rivash (#510) discusses the case of a rental that was done with a full kinyan after which time the landlord indicated that he wanted to end the rental and the renter acquiesced. When the landlord wanted to return the fee that was already paid, the renter informed him that he decided to hold the landlord to the original agreement. He claimed that although he had agreed before witnesses to abrogate the agreement, he had not done a kinyan to undo the previous one. The Rivash ruled that since rental is like a temporary sale, the kinyan to activate it must be reversed by a kinyan, just as a real sale would require. Similarly in our case, we would say that since no kinyan was done to end the rental, pl is still considered a renter and would have to pay.

Admittedly several Acharonim argue with the Rivash. Furthermore, Sha’ar Mishpat (315:1) says that the Rivash ruled only in a case where the renter made the undoing of the rental contingent on another condition, e.g., returning the pre-paid rental fee. In contrast, when he informs the landlord that he considers the rental over there is mechila (relinquishing of rights), which does not require a kinyan. Some say that the Rivash agrees that an admission that the rental is over is effective. Finally, the Rivash is based on an assumption that rental is like a temporary sale, which is a hotly disputed contention. Therefore, there should be ample grounds to justify pl’s contention that the rental was over. However, Kovetz He’arot posits that pre-payment works to make the connection to the property a full albeit temporary acquisition in the body of the property. Therefore, everyone will agree that a kinyan is needed to end the rental.

The Rama (CM 315:1) says that a renter can sublet a home as long as it does not harm the property and that a landlord can rent it to someone else if the renter is not living there because it is bad for a property to be unoccupied. The Netivot Hamishpat (315:2) says that if this happens, in a case where the renter could not manage to rent it out, the landlord can keep the new rental fee in addition to the old one. Therefore, def did not relinquish his rights to the rent which he received pre-paid, which he can keep.


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