Reuven rents an apartment for a year, and agrees to pay the rent every three months. After six months, he defaults on his rental payment, and the landlord wants to evict him from the premises immediately, in the middle of the rental period. Does he have the right to do so in Halacha?
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Let us first discuss briefly the obligation to pay a rental debt on time.
Clearly, one must honor any financial commitment, but is there an additional mitzvah involved in paying on time?
The Torah (Vayikra 19:13, Devarim 24:15) instructs employers to pay an employee on time, at the conclusion of his employment. The Gemora explains that if he completes his employment during the day, one must pay him his wages before sunset, whereas if he finishes his work at night, one must pay his wages before dawn. This is a positive mitzvah, and one who does not pay on time transgresses this, as well as several negative Mitzvos.
The Gemora further explains that this obligation to pay on time applies not only to the hire of workers but also to the hire of objects. One who hires a car, for example, must ensure that he pays on the day that he completes the hire, unless agreed otherwise. However, when it comes to the rental of land, there is a difference of opinion if these Mitzvos apply. Shulchan Aruch (Choshen Mishpat 339:1) seems to be inclined to rule that although one must honor one’s financial commitments, the unique Mitzvos involved in paying on time do not apply to the rental of land.
Further, when it comes to houses or other such real estate that is built on land, there is an additional factor involved. Houses are attached to the land, but are made of material that was previously detached from the earth. When examining the Halachos of buildings, do we consider buildings to be detached from the earth, seeing as they were constructed from detached materials, or perhaps we consider buildings to have the same Halachos as land, seeing as they are permanently attached to the ground? This too is a matter of debate amongst the Poskim, so even if we were to rule that timely paying for the rental of land is not included in the Mitzvos mentioned above, these Mitzvos may yet apply to the rental of buildings (if we were to regard buildings not to be considered as land for these purposes). Ketzos Hachoshen, noting that the issues involved are Torah-mandated, rules stringently.
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Let us turn now to the landlord’s demand to evict the tenant for late payment of rent. Undoubtedly the landlord has a right to demand a timely payment, and this claim is actionable in Beis Din, but what if he wants to evict the tenant instead?
In order to decide this, we need to consider what happens in the case of a sale in which the buyer does not come through with the payment required. Do we say that the sale is voided, or perhaps the sale itself remains valid and the seller has no recourse other than to claim the money owed?
When it comes to purchasing real estate, we find in Halacha the concept that either side can retract from a contract for a short period after the contract is effective. The Gemora (Bava Metzia 67b) rules that even after a kinyan (act of acquisition) is effected, if on the day of the sale the seller constantly requests the payment for the sale, he indicates that he is not yet fully agreeable to the sale, and may retract in the event that the buyer does not provide the funds immediately. This concept, known as “Ayel venofak azuzei – lit. Coming in and going out for his money” is cited by Shulchan Aruch (Choshen Mishpat 190:10), although there are several conditions that must be present for this Halachah to apply. The issues of which of the parties can retract and under what circumstances are beyond the scope of this short article and the reader is referred to the Shulchan Aruch and accompanying commentaries for a fuller discussion.
Nesivos Hamishpat (Choshen Mishpat 190:7) writes that the aforementioned rules are relevant only to a case in which the buyer is prepared to pay the money that is owed but has not yet done so; the seller may nonetheless be able to retract under certain circumstances. If, however, the buyer does not want to pay at all, or even wants to delay paying until a later date, the seller may always retract from the sale even after an effective kinyan (act of acquisition). The reason, explains Nesivos Hamishpat, is that in every sale there is an intrinsic condition that the buyer must pay immediately for the merchandise that he is buying. Even if the seller does not explicitly declare at the time of the sale that he is selling it on condition that he receives the money, this condition is obviously included, and thus if the buyer does not come through with the payment the seller may annul the deal.
Aruch Hashulchan, however, limits this ruling to a case in which the buyer was expected to pay for the goods immediately. If he fails to pay, the deal may be annulled. However, if the seller agreed to sell on credit with the balance to be paid at a later date, then even if the buyer defaults on his payment when the time comes, the seller has no recourse to annul the deal. If the buyer does not pay at all, the seller may certainly void the sale, but if he just delays the payment, the sale cannot be voided by the seller. The buyer may keep the property, although of course he stills owes the money. (Nesivos Hamishpat himself (91:9) makes the exact same differentiation as Aruch Hashulchan.)
Ketzos Hachoshen (Meshovav Lenesivos, 91) disagrees with the above. In his view, if the sale was expressly made conditional on immediate payment, the seller can void the sale in the event that the buyer does not pay immediately, but otherwise the sale cannot be avoided just because the buyer does not pay on time (although of course the seller can demand the payment in Beis Din).
Technically the same would apply to real estate rental. Although in the view of Ketzos Hachoshen, late payment does not justify a cancelling of the deal, according to Nesivos Hamishpat, if the tenant fails to pay on time the landlord may cancel the rental agreement and evict the tenant immediately. Nonetheless, if the rental money was not due at the start of the rental but at a later date, even Nesivos Hamishpat would concur that the rental is valid and the landlord cannot evict the tenant during the period of rent agreed upon even if he delays payment of the rent.
There is an additional feature involved here, though. There are opinions in Halacha that regard a rental contract not as a short term sale, so to speak, but as a continuous, ongoing, mutual agreement in which one party agrees to provide the building and the other party agrees to pay for it. As such, although when purchasing a house, if the payment was due at a later date the sale cannot be annulled even if the buyer does not pay on time, when it comes to rental it could well be posited that if the tenant defaults in his payments the landlord need not continue providing him with the real estate. If the tenant does not keep to his side of the deal, the landlord does not have to continue with his commitment either, since the agreement was two-ways.
It should be noted that the above discussion is relevant only in a case in which the rental contract does not specify the rights of the parties in the event that the tenant defaults in his rental payments. However, it is common for the rental contract to specify that the landlord may evict the tenant if he does not pay on time, and if the tenant signed such a contract, the terms and conditions will indeed be binding on him.
One final note: Landlords too are encouraged to go beyond the strict letter of the law, and to bear a while with their tenants even if they delay rental payments, and forgo any rights that they may have to evict the tenants, unless circumstances leave them with no alternative.
NOTE: Rabbi Yehonoson Dovid Hool is a member of the Kollel Choshen Mishpat – Institute for Dayanim, Jerusalem, Israel. The Institute for Dayanim is pleased to answer queries from the general public regarding monetary and business halachah, and to offer advice regarding the drafting of halachically valid contracts, wills etc. The Institute for Dayanim can be reached by e-mail at beisdin@neto.net.il, or via the website, www.en.din.org.il
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.