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Beit Midrash Series P'ninat Mishpat

Chapter 307

Subletting a House to a Larger Family

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(based on Shoel U’meishiv II:IV:77)
P'ninat Mishpat (576)
Various Rabbis
306 - Taking Payment from the Estate of the Borrower
307 - Subletting a House to a Larger Family
308 - Can the Old Window Stay?
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The Shulchan Aruch (Choshen Mishpat 316:1) rules that when one rents a house, he can sublet, but not to a family that has more members than the original renters. On the other hand, a teshuva in Shut Maharam MiRutenberg (IV:279) says that one can sublet to a larger family as long as he is willing to pay the amount of money that the average person would agree to be compensated for expected damage to the house due to the increased number of people. This responsum is actually signed by someone named Rav Chayim. The Rav Chayim who is mentioned as the author of the responsum in the Maharam appears to be the son of the Ohr Zarua (see also communication of the Rashba (Shut I:571) with him).
When the Maharam himself addresses the subject of not subletting to a bigger family, he does not mention this distinction, suggesting that the Maharam did not agree with it. On the other hand, the Mordechai (Bava Metzia 357), a student of the Maharam, cites in his name, that one can sublet to a larger group of people, just that he also quotes the Rambam as saying that he may not. On the other hand, the Mordechai also contradicts himself on this matter. It is possible that even the Rambam agrees that one can add to the rent and be allowed to increase the number of occupants, and the reason that he doesn’t mention it is because there is no Talmudic discussion on the matter.
Rav Chayim’s logic finds expression in a parallel halacha. An employer is exempt from paying an employee whose job he cancels without due cause under circumstances that the employee is able to replace the work with other work that is not harder than that which he was supposed to have been doing. However, regarding a case where the replacement work is harder, the Rama (CM 333:2) cites two opinions as to whether it suffices for the employer to pay compensation for the extra toil. The Shach (ad loc. 13) says that it could be that the opinion that apparently does suffice with the compensation was actually misunderstood. While the Netivot Hamishpat (333:4) says that the aforementioned Rama is contrary to the Shulchan Aruch in 316:1, where the Rama does not comment, it is likely that, there too, the possibility of compensation for the extra trouble (in that case, inhabitants) exists. It is just that the Shulchan Aruch cites the language of the Rambam, and the Rambam does not mention that factor, as it is not found in the Talmud, but he might agree with it.
In the final analysis, if a renter wants to sublet a house to a family with more members than his, he may do so if he is willing to compensate to the expected increased wear and tear.
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