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Beit Midrash Series P'ninat Mishpat

part I

Chapter 197

An Aggressive Landlord

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Case: The defendants (=def) rented an apartment from the plaintiff (=pl) as they were preparing for aliya, signing a two-year contract (via fax) and paying two months rent weeks before they were to come. The contract required them to give a security deposit "upon their arrival in Israel." Upon arrival, the relationship began tensely when def complained by phone about an element of the apartment’s condition, prompting pl to react with verbal aggressiveness. Upon their first face-to-face meeting, pl demanded the security deposit in cash or with an Israeli check. Def, who were without an Israeli bank account and were experiencing difficulties with cash transfer, were prepared to give only a foreign currency check, but pl viewed this as a ploy. Pl called daily, with the two sides barely understanding each other, speaking in a manner that pl referred to as resolute and def referred to as threatening. After meeting a rabbi and a lawyer, def took their advice to unilaterally back out of the rental. Pl sued for breach of contract that had caused him the loss of four months’ rent (for non-occupancy) and the difference between def’s rental agreement and the lower rent of the new tenants. Def respond that it was not possible to continue living under the threat of eviction and possible violence. Their legal advisors also claim that the agreement was invalid because pl displayed a situation known as ayil v’nafik azuzei (anxiously seeking payment) and because pl did not sign the contract.
P'ninat Mishpat (576)
Various Rabbis
196 - An Aggressive Landlord
197 - An Aggressive Landlord
198 - A Kibbutz’s Rights to Fringe Benefits
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Ruling: Land rental is finalized by money, a document, or usage of the land (Bava Metzia 99a). All of the elements were present in a manner that obligates def, even if def did not sign the contract.
The gemara (Kiddushin 26a) discusses ayil v’nafik azuzei as a reason to disallow the validity of a kinyan in the context of one who bought a field and, from the outset, the seller came repeatedly to ask for the money and was rebuffed. Rashi explains the logic: the seller displays that he sold the land only because he was in immediate need for the money, and if it is not immediately available, the rationale for the sale falls. If the seller can back out, so can the buyer. However, this does not apply in our case for a few reasons.
First, the money that pl was anxious about was not the price of the apartment or its rent but a security deposit. The money for the initial months of rental was paid immediately. Secondly, we find poskim discussing ayil v’nafik a’zuzei only in regard to sale and not in regard to rental, and there is logic to distinguish. The logic of the concept is that we see that the only reason the seller is willing to part with his land was that he was in immediate need of cash. However, regarding rental, the landlord is not parting with his property but is using it in the manner one uses extra land.
There is also a question in the poskim whether ayil v’nafik azuzei can be said in regard to a delayed payment. The Shulchan Aruch (Choshen Mishpat 190:15) says that the dayan should decide if it appears that the seller was under pressure to receive the money. Furthermore, according to the law of the land, the contract is binding irrespective of these issues. For several reasons, then, the agreement is binding.
[We will discuss next time whether pl’s behavior justifies the cessation of the agreement.]
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