Shabbat Parashat Shoftim| 5765
Damage Payments From One Who Ended a Rental Arrangement With Minimal Notification (excerpts from Piskei Din Rabbaniim- vol. VI, pp. 109-116
Case: The defendant (=def) rented a winery from the plaintiff (=pl) over several years. There were contracts for only some years, and each was for one year only. Pl says that def promised to give 6 months warning before leaving (in fact, he gave 3 weeks). Def says that he never promised to inform in advance and that he decided on the move recently. Pl, who sublets the winery from its owner, lost money because he did not find someone to replace def.
Ruling: Although in factual arguments between a landlord and a tenant, the landlord is believed until proven otherwise (Shulchan Aruch, CM 312:16), that is so when the landlord wants his plot back, as he is muchzak in (in possession of) his property. In contrast, here def is abandoning the property, and the question is whether he should be penalized for breaking their agreement. Regarding that point, def is muchzak. On the other hand, the standard required warning time to the landlord on ending the rental agreement is a year since the property in question is in a city (ibid.: 6). However, the time period may not be relevant, because the law and local practice are to follow that which is written in the rental agreement. In this case, the written agreement says only that the renter needs to give a month’s warning if he wants to renew the rental, and it does not stipulate that the agreement renews itself unless the renter informs that he desires to end it. There is a machloket between the Sha’ar Mishpat and Pitchei Teshuva (312:4) whether one who does not give proper warning must pay for the loss of income. The matter depends in part on whether we can assume that another renter would have been found had advance notice been given.
Chuchmat Shlomo (on Shulchan Aruch 312:1) does say that if one continues on without stipulation at a rented property after the original agreement’s termination, it turns into an open-ended agreement, requiring notification. However, our situation is more like that depicted by the Kesef Kodashim (ibid.:8), where both sides were aware that the agreement was tenuous after the contract expired. Other factors that weaken the rental agreement’s obligatory nature are the fact that pl does not own the winery but rents it and the fact that the agreement uses a language indicating that the arrangement allows use of the winery, but is not a rental. [Several sources are brought to demonstrate that in such a situation] the one who pays for the right of use does not have the same level of semi-ownership that rental brings on. There are thus further grounds to claim that one can terminate such a weak agreement without advance warning without incurring payments.
[In this specific case, beit din required def to pay some money based on the concept of p’shara (compromise)].
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