By Rabbi Meir Orlian
A recent Business Weekly article, “Shabbos Rental,” received a flurry of comments, all objecting to Rabbi Dayan’s ruling for various reasons. The article dealt with someone who rented the shul’s function hall for a bar mitzvah on Shabbos and used it for a melaveh malkah as well. He claimed afterward that the rental included motzaei Shabbos, whereas the shul gabbai claimed that the rental covered only Shabbos. Rabbi Dayan had ruled that the shul had the upper hand in the dispute and the renter had to pay additionally for motzaei Shabbos, since real estate is always considered in possession of its owner in situations of doubt (C.M. 312:15—16).
Several people objected to the ruling based on the Shach (C.M. 312:14; 317:5), who maintains that this principle applies only when the renter has a doubtful claim (she’ma), such as the extra month in a leap year. However, if the renter has a definitive claim (bari), as in our case, he is in possession since he holds the money.
One reader added rhetorically: “If the landlord claimed that the rental fee owed is $5,000 and the tenant claimed $100, would the landlord be believed?”
“These are learned objections,” Rabbi Dayan thought. “They require elucidation.” He took out his Shulchan Aruch and other sefarim and examined the case once more. After researching the topic, he replied to the readers:
“There is a difference between a disagreement about the amount of the rental and about the length of the rental. The Mordechai (B.M. #387), alluded to by the Rema (317:2), seems to rule that even regarding the sum, the landlord has the upper hand. However, the consensus of the Acharonim is that, regarding a dispute over the sum, whoever is in possession of the money has the upper hand. The principle that real estate remains in the possession of its owner does not apply here, since the dispute does not relate at all to the usage, but only to the payment. Therefore, as any other monetary dispute, the rule of ha’motzi me’chaveiro (the plaintiff has the burden of proof) applies simply” (Machaneh Ephraim, Hil. Sechirus #21; Pischei Choshen, Sechirus 5:[55]).
Rabbi Dayan continued: “Now, let’s consider the other extreme. Imagine that you used your neighbor’s rental property, and afterward a dispute arises. You claim that your neighbor allowed you to use it for free, whereas he claims that you used his rental property without permission and owe the standard rental fee. Is it not clear that you must pay? Here, we certainly should apply the rule that real estate remains in possession of its owner. The dispute is clearly focused on the right of usage.
“Similarly, if both parties agree about the amount of the rental, but dispute the length–one claims four days and one claims five–in principle, the landlord is believed when the facts cannot be proven” (see C.M. 317:3; Shach 317:11).
“This was the case in the article,” concluded Rabbi Dayan. “The dispute was whether the hall was rented for motzaei Shabbos. The renter claimed that the rental included motzaei Shabbos, whereas the gabbai claimed that they had rented only for Shabbos. Thus, the rule that real estate remains in possession of its owner applies here. There is more to delve into on this issue, but it is beyond the scope of this column. Nonetheless, the ruling was in error, based on another concept that some readers raised–that of migo. Since payment for the hall was already due and the renter would be believed that he paid, he is also believed with a definite claim that the rental included motzaei Shabbos. The Rema and Shach address the point of migo, as well, but to explain this concept and its application requires a separate, additional article.”
From The BHI Hotline: Sale Of
A Rented Apartment
Q: A young couple rented a house that was recently sold to another owner. They just found out that her father paid the first month’s rent and thus they deserve a refund of a month’s rent.
They are nearing the end of the lease and want to withhold the final month’s rent in lieu of receiving a refund. The new owner, however, claims that since he does not have any extra funds, they must pay the final month’s rent and should pursue their refund from the previous owner. Can the renter tell the new owner that they will communicate with the original owner, who signed their lease, and the new owner should be in touch with the old owner if he has any claim?
A: Halacha permits a landlord to sell a house that he leased and the new owner must allow the tenant to remain for the duration of the lease (C.M. 312:1). Similarly, even if there is no lease, the new owner must give the tenant notice, in accordance with local custom, before he can demand that the tenant move out. The rationale is that the new owner’s rights cannot be stronger than those of the original owner who entered into an agreement with the tenant (C.M. 312:13).
Poskim debate, however, who collects the rent once the house is sold.
Some authorities maintain that the tenant continues to pay the original owner, the one from whom he leased the house, rather than the new owner. The contractual obligation was only between them. When the new owner seeks to collect, the tenant may reject the claim by responding, “You have no claim against me since my rights come from the original owner” (Maharil Diskin, Kuntres Acharon 5:250).
Most poskim maintain that once the house is sold, the tenant must pay rent to the new owner. However, if the tenant prepaid the original owner, he already acquired rights and is not obligated to pay a second time to the new owner (Sma 312:2).
Some authorities explain that the tenant does not actually owe rent to the new owner. It is just that the new owner has the right to give the tenant an ultimatum: Either you pay rent or vacate the house. Accordingly, if the tenant does not wish to remain in the house, he may exercise that option and move out, and the new owner cannot compel him to honor the lease (Shai LaMora 7).
Others write, and common practice is, that a lease passes from the original owner to the new owner and the tenant is also bound by the existing lease. Although the obligation to pay rent results from the kinyan that was performed with the original owner, nevertheless, since the obligation to pay is because of usage of the house, it is logical that the tenant must pay the new owner since it is now his house. It is therefore assumed that the original kinyan includes the understanding that the tenant would pay rent to whoever purchases the house (Mishkan Shalom II: 59).
In your situation, however, there is an additional point to consider. As mentioned, if a tenant prepays the rent, the new owner cannot demand that he pay a second time. However, there might be a difference between a tenant who prepaid his rent and a tenant who accidentally overpaid. Since the extra money must be refunded to you, the new owner may demand rent for the final month of the lease and you will have to pursue the original owner for your refund.
Money Matters: Timely Payment Of Wages
Based on the writings of Rav Chaim Kohn, shlita
- Who is included in the halachic requirement for timely payment of wages?
- The mitzvah to pay wages promptly and the associated prohibitions against delaying payment apply to both regular employees and those hired on a one-time basis. It also makes no difference whether the worker is paid by the hour (po’el) or a flat fee for the job (kablan)–(C.M. 339:6).
Furthermore, the requirement applies even to services rendered by a minor (e.g., babysitting or lawn mowing) and even if the wages amount to a small sum. It also applies whether the worker is poor or wealthy (Ahavas Chessed 9:3, 5, 8).
In addition, this requirement to pay promptly applies not only to wages, but also to rental fees. There is an opinion that the prohibition to delay does not apply to real-estate rental, but many authorities maintain that it applies also to real estate (C.M. 339:1; Ahavas Chessed 9:5). Therefore, a tenant or one who leases an auto or other equipment should be careful to pay his rental bill promptly.
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to subscribe@businesshalacha.com.
