An Incomplete Sale of an Apartment

753

Various Rabbis

11 ADAR 5769

Case:

The plaintiff (=pl) sold an apartment to the defendant (=def). The contract included a clause that def could move into the apartment on a certain date, after making the last payment. Def moved into the apartment, with permission, two months earlier than the date in the contract and a month before the final payment was made. Pl says that since def moved in before the last payment, he had been living in pl’s apartment and should pay rent for that time. Def says that he acquired the apartment when he moved in and thus should not pay rent.

Ruling: Although either money or a contract can effect a sale of land, in a place where there is usually a sales’ contract, money without a contract is not a kinyan (Shulchan Aruch, CM 190:7). In Israel today, all transactions are registered in the Tabu, and, therefore, many poskim posit that before such registry, the transaction is not complete because the sides have not reached full intention to complete the transfer. However, in this case, both sides agreed that they intended the transaction to be complete before the Tabu registry, through the kinyan of money (see Chazon Ish, Likutim 16 and Maadanei Eretz, Shviit 18, who agree conceptually). However, the contract says that this would be only after the final payment, and so def was living for a month in pl’s apartment.
Regarding one who lived in another’s apartment without permission, he must pay if the dweller benefited and the owner lost. Def benefited because otherwise he would have rented another apartment for the month. Did pl lose?
The Rama (CM 363:10) says that one who occupied the house of someone who was out of town and was not trying to rent it out is exempt from paying, as the apartment was not slated for renting. It would seem that the apartment in question was not going to be rented for such a short time. However, beit din viewed it as slated for rental to def, as it was natural for him to move into specifically this apartment. Therefore, def has to pay rental.
The Rama (ibid.) says that if one says to a friend: "Live in my courtyard," he does not have to pay rent. This seems to contradict the Rama’s ruling (CM 246:17) that if one tells his friend to eat with him, he has to pay for his food. The K’tzot Hachoshen (246:1) claims that the former Rama is talking about a case where the one who lived there would have rented elsewhere. Therefore, he would have to pay only if he caused a loss to the owner, which does not apply if the owner invited him. Regarding the eating, he has to pay for the benefit that he did have, which we will assume requires payment unless there is a special indication that the provider wanted to do so for free. In our case, def benefited, and, furthermore, the history of their relationship makes it clear that pl did not intend to provide def with valuable benefits for free.