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Ruling: Following is the agreement between the sides: If there will be another Coronavirus closure affecting the shul, then def will be entitled to an 80% discount on the rent during the time the shul is closed. This discount will pertain to no more than 30 days during the course of a year, whether that is over a consecutive period or the 30 days are scattered. If, in the face of closings, def decides to close the shul permanently, they must give 20 days’ warning, during which time they will pay full rent.
Following is the decision based on compromise that the sides asked beit din to make regarding the two months of closure prior to the adjudication. The governmental regulations due to the pandemic are categorized as a makkat medina (something that afflicts a whole "state"), as is posited by Shut Maharam Padova (86) and the Rama (Choshen Mishpat 321:1). There is a major disagreement between the poskim about payment for a rental that became unfeasible due to a makkat medina (see presentation in Eretz Hemdah-Gazit ruling 80047; Rav Shlomo Ishon in Emunat Itecha 128, pg. 143-150).
Some of the factors that impact how to rule are: 1. From which side did the inability to make use of the rental come – since part of the time it was permitted to daven outside, it is a matter of the apartment, which is pl’s; 2. Who is muchzak (in control of) in the money – since def paid for one of the two months, each side is muchzak in one month; 3. Is it possible/feasible for the landlord to undo the agreement – here, the landlord could back out of the rental, if the renter is not willing to pay, and rent it out to someone to live in.
According to the basic halacha, as presented by the Rama (CM 312:17), def is exempt from paying during the time that he cannot use the apartment as a shul. However, beit din feels that it is proper to consider that the sides have reached a compromise agreement whereby pl protects def’s ability to continue to operate long-term and in that way protects def’s major investment in setting up the apartment to serve as a shul. Therefore, beit din rules based on compromise that def should pay pl two thirds of the normal rent due for the two months.
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
602 - Rent for a Shul Closed due to Corona
603 - Preserving the Management Company’s Security – part I
604 - Preserving the Management Company’s Security – part II
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Beit Din Eretz Hemda - Gazit
P'ninat Mishpat A Commercial Rental for a Closed Business – part II
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