Shabbat Parashat Noach 5782

Ask the Rabbi: A Renter Having a Zecher L’churban

Question: The house I am renting does not have an unpainted segment of wall as a zecher lachurban (a remembrance that the Beit Hamikdash has been destroyed). Should I make one?

Answer: The gemara (Bava Batra 60b) is the source of the halacha (see Shulchan Aruch, Orach Chayim 56:1) to leave an amah X amah of wall unpainted. The gemara presents this and a couple of other small limitations on enjoyment as a balanced approach between showing no aveilut and those who stopped consuming meat and wine (which were parts of the Temple service).  

The gemara states that one who acquires a fully painted home can leave it as is. Why is that so? The simple reading of the Radbaz (II:640) is that only a person who improperly painted is required to peel off paint. The Magen Avraham (560:1) says that one can leave it as is only if it might have been built in a permitted manner, e.g., even if he bought the house from a Jew, perhaps it was fully painted by a previous, non-Jewish owner. He and most poskim (see Mishna Berura 560:4) posit that if it was painted improperly, then even a subsequent owner must peel a section of paint.

So at first glance, the ruling for a renter depends on the landlord. If it is a non-Jew, who did nothing wrong, the paint can stay. If a Jew owns it, since he should have left an unpainted area, we obligate the present resident. However, the matter is more complex.

Some say that a renter is not considered like a temporary owner, and a non-owner who happens to be staying in a home is not required to make a zecher lachurban (Migdal Hashein 61; Avnei Yashfei I:116 disagrees). Thus, even if the owner sinned, the renter need not rectify like a buyer would. There is even an opinion that if it is built to be immediately sold or rented, the owner is not required to leave a zecher lachurban (Migdal Hashein ibid.; Igrot Moshe, OC III:86). While this makes more sense if the owner was not planning to sell or rent to a Jew, it is possible to exempt in both cases (ibid.; Mishneh Halachot V:71 disagrees). If so, the renter is not obligated since the gemara states that living there does not create an obligation to peel paint. If the renter paints himself, then he must leave over an unpainted area (Pri Megadim, 560, EA 4; Sha’arei Teshuva 560:3).

Most agree that if the owner does not permit, the renter may not and therefore is certainly exempt from peeling off paint (see opinions in Dirshu 560:10). If he lets on condition that the renter repaint fully before he leaves, there are two further reasons for leniency – 1. If he would otherwise not have to paint at the end, it is unclear whether the halacha was meant to require an outlay of money; 2. The full painting at the end (at least if the next resident is Jewish) might be worse than leaving things as they were (Avnei Yashfeh ibid.).

This final point highlights a chakira about the zecher lachurban. Is it a requirement to have a zecher lachurban to remind one about the Beit Hamikdash, or does the act of fully beautifying one’s house contradict our national aveilut? The term zecher lachurban implies the former approach (which Igrot Moshe ibid. posits). Actually the gemara does not mention it, but many Rishonim (including the Tur, OC 560) do. Parts of the gemara and several halachot or opinions imply that the idea is an aveilut prohibition (see Rashi, Bava Batra 60b). It is likely that a violation of the prohibition turns the house into a chillul Hashem that needs rectification. Among the cases that might depend on this chakira are: painting but having an alternative zecher (see Mishna Berura 560:3 and Sha’ar Hatziyun 8); having a palatial house with an unfinished area (see Radbaz ibid.); can there be a need for more than one such area (Mishna Berura ibid.). We cannot elaborate.

Because of some broad possibilities for leniency (including that our paint might not count (ibid. 2)) and the idea that we are generally lenient on this halacha (Radbaz ibid., Igrot Moshe ibid.), a renter may be lenient except when he paints in the midst of the rental period.

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