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Beit Midrash Mishna and Talmud Various Shiurim

The Mitzvah of Mezuzah for Renters

Two Views, Avnei Nezer's Proof, How a Renter Today is an "Owner”, Another Angle, The Ohr Samayach-Shach "Right of Usage”, A House with No Door, Summary
Rabbi Hershel Schachterכ' טבת תשס"א
6095
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INTRODUCTION
In the following article, we will discuss the parameters of the obligation of a renter to affix a mezuzah to his doorpost: we will discuss the variant views on whether the mitzvah is Torah or rabbinically-ordained, as well as the ramifications of the various views.

The Talmud in Tractate Pesachim (4a) states: "Rav of Sharshiah said: 'Mezuzah is the obligation of the resident.'" A baraitha is cited by the Gemara in Menachot (44a) to the effect that "one who lives in an inn in the Land of Israel, and someone who rents a home outside of Israel, is exempt from the mitzvah of mezuzah for the first 30 days; from then on, he is obligated. But someone who rents a home in the Land of Israel must affix a mezuzah immediately, due to the mitzvah of dwelling in the Land of Israel".

TWO VIEWS
Regarding the distinction between prior to, and following the period of 30 days, two approaches are submitted by Tosfot:
According to the first view - accepted by Rabbi Akiva Eiger - a renter's obligation to affix a mezuzah is only rabbinic in origin, because the Torah commands us to place the mezuzah "on the doorposts of your house" - and renting is not considered a "purchase" of the property in question. After thirty days, this same renter must affix a mezuzah so as not to give others the impression that he is transgressing a Torah law ("Mar'it Ayin"). The Avnei Nezer, following this explanation, discusses the implications for a house that would not lead to observers' misconceptions. So, for example, residents of a dwelling with a large turnover of tenants - such as a hospital, a jail, a dormitory, and the like - would not be obliged to affix a mezuzah.

A second view maintains that the renter's mitzvah (even outside of Israel) to affix a mezuzah derives from the Torah, since the requirement that you place it on "your house" does not require you to buy it, but to live there, in the same manner as a homeowner lives in his house. A mezuzah is required only for a permanent dwelling place; when one owns his home, it is considered his "permanent dwelling place" immediately. One who rents, however, cannot consider the house a "permanent home" until after 30 days. (The basis of the law that a mezuzah is dependent on a permanent dwelling is to be found in the Talmud in Yomah, where Rabbi Yehuda and the sages disagree as to whether a Sukkah is considered permanent or temporary dwelling. The answer to that question determines whether it must have a mezuzah or not).

AVNEI NEZER'S PROOF
Utilizing an excerpt from the Talmud in Shabbat 131b, the Avnei Nezer proves that a renter is obligated only rabbinically - in accordance with Tosfot's first approach: According to Rabbi Eliezer, in the case of Brit Milah (ritual circumcision) not only does the actual act of Milah override Shabbat, but other "melachot" (creative acts of labor otherwise forbidden on Shabbat) are permissible even for actions that merely help one prepare for the Milah. (For example, heating metal to create the knife needed for milah is permissible according to R. Eliezer. We should note here that the accepted halacha is not like Rabbi Eliezer, and only the milah itself is permissible on Shabbat.) Even in cases where the mitzvah per se does not override Shabbat - as in the case of waving the lulav, which does not entail any "melacha" - R. Eliezer rules that preparatory melachot are permitted! So, for instance, he maintains that one may cut the lulav branch off its tree for the purpose of fulfilling the mitzvah of waving the lulav.

The Gemara explains that R. Eliezer concedes that in reference to the mitzvot of Tzizit and Mezuzah, preparatory melachot - such as writing a mezuzah or tying the strings of the Tzizit - do not override Shabbat. The reason for his concession in these cases: One could easily make "hefker" - forfeit his property rights - to his home and his garment, thereby exempting them from the mitzvot in question. Since, then, these mitzvot are not dependent on desecrating Shabbat, it is forbidden to perform preparatory melachot vis-a-vis them. The Rashbah explains that the reason a house is "hefker" and thereby exempt from the mitzvah of mezuzah is : "It is no different than a renter who is exempt for the first 30 days of living in a house. And even after 30 days, his obligation to affix a mezuzah is only rabbinical in nature." The Avnei Nezer cites this gemara as a proof that a renter is only obligated in mezuzah rabbinically, such that even if he continues to live in the home, he is exempt by the Torah - since it is not his home.

HOW A RENTER, TODAY, IS "AN OWNER"
The mishna in Avoda Zara (21a) states that it is forbidden to rent houses to idolaters, since these people bring their idols into the homes and thus cause the Jewish landlord to transgress the prohibition "You shall not bring abominations into your house." On page 15a, the Gemara proves from this mishna that renting is not considered formal acquisition or purchase. Tosfot discusses the question of how it has become customary nevertheless to rent homes to non-Jews despite the above prohibition; he offers several answers.

The commentary of the Shach on the Shulchan Aruch accepts the view posited by the Rosh and Tosfot Rabbenu Elchanan, that nowadays, renting is considered to be a form of "purchase". The reason it was deemed not to be so is rooted in the Gemara in tractate Bava Metziah 101b; there, the Gemara says that if the landlord's house were to collapse, he is permitted to remove the tenant from the home, with the justification "you are no better than me." But today (i.e. in the time of the Rishonim writing this answer) rental contracts operate according to the custom of the country in which the home is situated; these laws dictate that the landlord has no such right to remove the tenant; barring such a right - the rental is indeed considered to be a form of purchase.

ANOTHER ANGLE
The Rishonim were divided on the matter of whether a rented yard constitutes a domain which could serve to acquire objects for the landlord or tenant. (A person may acquire property either by grasping it personally, or by having it placed on a defined area of his property, such as an enclosed yard.) Maharit Algazi writes that this issue is dependent on the resolution of the question of whether rental is considered a form of purchase or not. This question, in turn, is dependent on the debate between Rabbi Yochanan and Reish Lakish as to whether the acquisition of the "fruits" of a property is tantamount to the acquisition of the property itself. Since the accepted halacha goes according to Reish Lakish - who maintains that acquisition of "fruits" of the property is not equivalent to acquiring the property itself - rental is not a form of acquisition. According to this view, unlike that of Shach, the same holds true even today.

THE OHR SAMAYACH - SHACH "RIGHT OF USAGE"
The Ohr Samayach, (Laws of Murderers 2, 15) responds to the above view of Maharit Algazi; he writes that a renter does not acquire even the "fruits" of property he is renting, but just a "right of usage" in the house. Rabbi Yochanan and Reish Lakish were debating on the narrow case of a person who purchased "a property for its fruits"; in that case, all agree that the purchaser acquires the "fruits." But regarding a person who just received a right to use a particular piece of property, all agree that there is no acquisition of "fruits".

The manner in which the Ohr Samayach defines a rental situation is consistent with the above-mentioned view of Shach: In the past, the landlord's right to remove the tenant from his property illustrated that the renter is not in possession of any "fruits" of the property, but only maintains a right of usage. Nowadays, when the landlord cannot remove the tenant during the period of the tenancy, the rental can be categorized as "the tree for its fruit" - i.e. the actual home is rented for the purpose of its facilities.

A HOUSE WITH NO DOOR
For the view that says that a renter's obligation in mezuzah is Torah-ordained, a number of ramifications exist, aside from the issue of a 30-day grace period. Rambam writes that one of the preconditions of the mitzvah of mezuzah is that the home have a door, not just a doorway. The Ra'avad disagrees, arguing that a doorway is sufficient to generate the mitzvah of mezuzah. In light of this disagreement, Rabbi Akiva Eiger rules that since a renter is only obligated in mezuzah rabbinically, one may be lenient (relying on the view of Rambam) and exempt him from affixing a mezuzah if the house has no door. Clearly, a home-owner, whose mezuzah obligation is from the Torah, must adhere to the stringency of the Ra'avad, and affix a mezuzah even to a doorway.

SUMMARY
In this article, we dealt with a debate among the Rishonim as to whether a renter is obligated by the Torah to affix a mezuzah or whether his duty is only rabbinic in origin; the latter view points to the verse "doorposts of your house" - i.e. to be obligated in mezuzah from the Torah, you must be a homeowner; in addition, rental is not considered acquisition/purchase.

Two views have been offered as to why rental is not an acquisition/purchase - one is that of the Maharit Algazi, who says that the this so because the purchase of "fruits of a property" is not considered purchase of the property itself. The other view - that of the Shach - is that in a rental situation, the landlord may evict his tenant in the midst of the rental period; this view is consistent with that of the Ohr Samayach - who classifies renting as a right of usage only, and not the right "to a tree for the purpose of its fruits." Following this latter view, nowadays, when landlords do not have the right to evict tenants in the middle of the rental contract, the rental can be categorized as the purchase of a "tree for its fruit" - i.e. the home is rented for the purpose of its facilities - and thus, the renter would be obligated in the mitzvah of mezuzah from the Torah.
Rabbi Hershel Schachter
Rabbinical Consultant of the O.U. & Rabbi at Yeshiva University. Friend of The Bet-El Yeshiva Center.
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