P'ninat Mishpat: Smoking Rights in a Rental? – part II | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: The defendant (=def) rented an apartment (=apt) from the plaintiff (=pl) for 2,400 NIS a month, without special stipulations. The downstairs neighbor (=dn), a former marijuana user, who also rents from pl, complained about def’s smoking cannabis, as the smell penetrated into his apartment. Pl warned def that unless she stopped smoking at apt, she would have to leave. Def relented but left apt after 5 months. Pl demands that def pay an additional three months rental, as stipulated in the contract for leaving early. Def argues that since she needs cannabis for a medical need, it is unreasonable to forbid her to use it at apt, and pl’s conviction to remove her if she continued, ended their contract. The two also disagreed whether to count the three months from when def informed pl when she planned to leave, and when each of these stages occurred. Both sides wanted only one hearing and were unresponsive to beit din’s attempts to verify their claims. Def admitted she had neither a certificate to allow using cannabis nor medical records of conditions that necessitated it.

Ruling: [We saw last time that in cases in which many points are left in doubt, all the more so when the sides show little interest in corroborating claims, it is proper to build a ruling based on compromise that incorporates the various doubts. The first doubts we discussed were whether def had health needs that warranted smoking cannabis and whether pl had promised dn that he would not rent out the apartment to a cannabis smoker.]
Did pl end the agreement (including an additional three months’ rent for early departure) when he demanded of def that she could not remain if she continued smoking? If pl had the right to compel def not to smoke in apt, then he was not ending the agreement but enforcing it according to his rights. However, if def had the right to smoke cannabis under the circumstances, coercing her to stop is a fundamental breach of the contract, which gives the renter the right to live normally in apt, including treatment for serious medical needs. Because def provided no corroboration of her claim, the doubt on the matter is not one that favors her.
If pl breached the contract, did def give up her resulting right to end the agreement by continuing to live in apt? When a sales agreement is voidable due to a flawed sales item, the buyer loses his right to void it if he continues to use it after uncovering its flaw (Shulchan Aruch, Choshen Mishpat 232:3). However, this rule does not apply to breach of contract. One could discuss what would happen if pl had rescinded his threat, but since pl never rescinded it, def can decide to leave based on the situation when she left. Furthermore, even when one agrees to a problematic situation, if it involves significant physical pain, he may rescind his agreement (see Ketubot 70b). It is questionable (one of the matters that were not clarified) whether def can also claim that it was unfeasible for her to leave apt right away.
Based on the various indications discussed, beit din, based on majority, awarded pl 45% of the rent for the relevant time. [Next time we will see discussion of when to begin and end the up-to-three-month period.]