Mrs. Cohen, whose health was ailing, moved with her aide into a ground-floor apartment with a one-year lease. Three months later, Mrs. Cohen took a turn for the worse and was nifteres shortly afterward.
After the shiva, the family began clearing out the apartment and removing Mrs. Cohen’s belongings. By the shloshim, the apartment was cleared out. The aide moved on to another household.
Mrs. Cohen’s family contacted to the landlord: “We vacated the apartment,” they said. “We are stopping payment for the remaining months.”
“If I can rent the apartment out to someone else, that’s fine,” the landlord responded. “However, the rental market is a little sluggish now. I’m not sure that I’ll get alternate tenants immediately. Even if I do, I may have to come down a little on the price. So I expect the estate to continue paying according to the lease until I know that I have a replacement tenant.”
“But why should the estate continue to pay?” the family objected. “Our mother is not using the apartment anymore!”
“And what if she were away in Florida for three months – wouldn’t she still have to pay?” the landlord asked.
“That’s if she decided to go away,” the family replied. “Furthermore, in that case her belongings would still be there. But we returned the apartment vacant to you. It’s not her fault that she was nifteres. Why should she be held liable?”
“I’m not blaming her,” the landlord said, “but the contract is binding until the end of the rental term.”
Mrs. Cohen’s family and the landlord approached Rabbi Dayan and asked:
“Is Mrs. Cohen’s estate liable for the remaining rental payments?”
“There is a dispute between the Rashba and Mordechai on this issue,” Rabbi Dayan answered.
“Rashba (1:1028) maintains that the estate is liable for the duration of the rental term, unless the lease allows early termination, because a rental is like a sale for that period. Circumstances of oness (circumstances beyond control) do not undo a sale, and similarly a rental, whether the tenant actually lives there or not. Furthermore, the heirs cannot impose on the landlord to find other tenants.
“However, Mordechai (B.M. #345) cites Maharam that if the tenant hasn’t paid yet, he is exempt, due to the oness. However, if he paid up front, the landlord can retain what was paid but must return the relatively small value of having the apartment unoccupied. He compares this to a worker whose employment is cut short due to unforeseen oness.
“Beis Yosef (C.M. 312:22) sides with the Rashba, that the estate is liable, whereas Rema (334:1) sides with the Mordechai that the estate is exempt but rules that if the tenant paid up front, the landlord does not have to return anything, in deference to the Rashba.
“Shach (334:2) also sides with Maharam, and explains that rental is like a sale only for certain matters; that each month stands alone; and that even a sale can sometimes be undone if the seller so stipulated.
“Other Achronim side with the Rashba (Tzemach Tzedek C.M. #45; Machaneh Ephraim, Sechirus #5; Minchas Pittim 334:1).
“Due to this dispute, the money remains with whoever is in possession. Thus, if Mrs. Cohen did not pay upfront, the landlord cannot collect from the estate (Aruch HaShulchan 334:11; Pischei Choshen, Sechirus 6:8).
“Civil law varies from state to state regarding the requirement of the estate to pay for the remainder of the rental term if the landlord does not rent the property to new tenants.
“Therefore, there might be a clause in the lease or a local common commercial practice about this issue,” concluded Rabbi Dayan, “which is binding also according to halacha, especially when the halacha is subject to dispute (Shach 73:36; Maharsham 3:128).”
Verdict: Rishonim dispute whether the estate is liable for the duration of the rental. Therefore, whoever is in possession of the money has the upper hand, unless stated in the lease or there is a common practice to otherwise.
