Reclaiming Hanukah

By: Rabbi Max Sutton, Rosh Bet Din Aram Soba

Last Month:

The Aftermath of Terror

This past summer was a difficult time in Southern Israel, as missiles were fired upon major cities like Ashkelon, Be’er Sheva and Ashdod. Terrorist attacks not only endanger thousands of lives, but also put a tremendous financial strain on the residents of the attacked areas. The following case is just one of the many predicaments innocent civilians were confronted with and which was presented to our Bet Din to help resolve.

Albert had rented from Danny a beautiful oceanfront apartment off the shores of Ashdod for two weeks. He prepaid the entire rental fee of $ 5600 and moved into the apartment on Thursday, August 18. That evening, and for the following ten days, missiles were shot from Gaza, hitting the city of Ashdod mercilessly. Albert testified that a number of missiles hit approximately 150 feet from the apartment, forcing his family to periodically evacuate the apartment and take refuge in the building’s bomb shelter. His summer vacation was a complete disaster, as his children suffered mental trauma from the episode. In Bet Din, Albert demanded a complete refund of the $5600, explaining that he could not leave the Ashdod apartment as he had rented out his Jerusalem home and had nowhere else to live. Danny truly sympathized with Albert but was unwilling to return the funds, as the situation was not his responsibility. How should the Bet Din rule, in favor of Albert or Danny?

Torah Law

According to the ruling of the Shulhan Aruch, a short-term rental agreement does not require a written contract for the transaction to be binding. Transfer of funds from the tenant to the landlord, or the tenant’s authorized occupancy, is sufficient to create a legal transaction. This ruling is not applicable in places where it is customary to sign a written contract even for a short-term rental arrangement, but generally, the arrangement is binding even without a contract.

The Shulhan Aruch rules that if a large scale disaster strikes a city, rendering a tenant homeless, he is entitled to a complete reimbursement of any advance rent he had already remitted to the landlord. Since the property rented was damaged by the disaster and was no longer livable, the contractual agreement is null and void and the tenant may collect any monies he advanced. Leading halachic authorities debate whether a tenant is entitled to a refund when the rented home is structurally stable but the tenant is compelled to evacuate the premises due to external factors, such as war, plague or famine. The consensus among the authorities is that if the property is structurally stable and can physically be occupied by the tenant, the landlord has lived up to his end of the agreement. Since the landlord’s property is available for occupancy, the pressing need to evacuate is viewed as the misfortune of the tenant. The tenant is therefore legally bound to the rental agreement, and may not recover the rent he had advanced. While other opinions differ, a landlord may legally retain the advance rent payments he received, relying on the majority rule.

Unfortunately, present day terrorist attacks on the State of Israel include rocket fire on heavily populated cities. Many civilians evacuate their homes for weeks on end, taking refuge with family and friends who live in safer areas. As aforementioned, even if a tenant is pressed to evacuate a rented property, he nevertheless may not recover from the landlord rent he had advanced. As long as the property is structurally intact and available for occupancy, an unforeseen attack can be considered the misfortune of the tenant and not the responsibility of the landlord. On the other hand, rockets falling from the sky may actually render a home physically unstable for occupancy. Since the actual structure of the home is essentially in jeopardy from the risk of a direct or close impact, the attack may be considered the misfortune of the landlord, even if the home was never actually hit by a missile.

In any event, if a tenant remains on the premises and does not flee from the danger, he is surely not entitled to a refund. Since he occupied the property for the duration of the lease, the landlord may claim that the property was obviously useable. In short, only in the event of evacuation is the above halachic discussion applicable.

United We Stand

Our Bet Din ruled in favor of Danny, the landlord, allowing him to retain the entire sum paid to him by Albert. Although no written contract was signed by the parties, it is common practice in Israel to rent summer vacation apartments without a written contract.  Since the apartment was structurally sound and available for occupancy, the sudden terrorist attack is viewed as Albert’s misfortune. Even if one were to argue that the apartment was considered structurally unstable due to the mere risk of being hit by a rocket, nevertheless, Albert occupied the home for the entire duration of the lease. Like hundreds of thousands of other innocent civilians who did not evacuate, Albert made use of the home, and he is therefore not entitled to a refund.

Nevertheless, our Bet Din approached Danny privately explaining to him that Albert’s summer vacation was ruined, and some compensation would be appropriate. Danny graciously offered Albert a two-week stay during the off season free of charge. The two embraced and were pleased to have found a solution for their dispute.

A note from the author: As this verdict is being submitted for publication, some 30 rockets have been launched from Gaza and are presently landing in Southern Israel. May Hashem protect our nation in the merit of people like Danny and Albert who chose to live in unity rather than discord.

Endnotes: Shulhan Aruch – Hoshen Mishpat 195:9, Sema 195 :20, Rama 312:17, Kesot Hahoshen 316:1, Shach 334:3, Kesot 322:1, Mahane Efraim – Sechirut 7.

A Power Struggle

Joseph, an accomplished businessman, was approached by the president of a synagogue asking if he would donate the aron kodesh (holy ark which contains the Sefer Torah) of the new Sanctuary. Joseph generously pledged $126,000 and clearly stipulated that in honor of his donation, a plaque with his name and the names of his beloved family was to be mounted on the wall alongside the aron. Joseph wired $50,000 to the synagogue’s bank account, and faxed the text of the plaque to the synagogue’s office. Approximately three months later, he received a phone call from the president informing him that a well-known Jewish philanthropist pledged $750,000 for the entire main sanctuary, including the aron kodesh and the tevah (elevated platform from where the Torah is read). The president was sure Joseph would be willing to rescind his pledge and allow the synagogue to finalize the deal for $750,000, considering Joseph was a congregant of the synagogue and aware of the financial hardships they were experiencing. The president further explained that a contract was never signed between the two parties, and although money was transferred to the synagogue, the plaque was not purchased and never put up on the wall. Joseph, however, insisted on the right to donate the aron and have the plaque mounted in his honor, as they had agreed. The two parties turned to our Bet Din to resolve the matter. How should the Bet Din rule, and why?