Q: In the previous issue, we began to discuss the case of a landlord whose tenant (Reuven) had wanted to leave in the middle of a lease to move to Eretz Yisrael, and the landlord allowed it, because he found a new tenant (Shimon). Then the war broke out in Eretz Yisrael, and Reuven informed the landlord that he couldn’t move. The landlord turned to us asking who should get the apartment.
A: Last week we clarified that the lease you signed with Shimon is valid, because you had the right to sign a new lease even while Reuven was still renting the property, since he asked you to do so.
But Reuven might have a valid claim to the property, based on a Gemara. The Gemara (Kiddushin 49b, recorded in Shulchan Aruch Choshen Mishpat 207:3) relates that a person sold all his possessions with the plan of settling in Eretz Yisrael, but was unable to actualize his plans and he wanted to renege on the sale. The Gemara differentiates between cases: If the seller did not say why he was selling his possessions he cannot renege. But if he told the buyer that he was doing so in order to settle in Eretz Yisrael, and he was unable to settle there — either because he couldn’t earn a livelihood or because he couldn’t find a suitable dwelling — he is allowed to renege.
Tosafos (Kiddushin 49a, s.v. Devarim) notes that in this case, one does not have to make a tenai kaful (double-sided condition) stating not only that he is selling on condition that he settles in Eretz Yisrael, but also that if he doesn’t settle in Eretz Yisrael, he is not making the sale as one generally must do in order for a condition to take effect, because we are certain (umdena) that this is what he meant.
Some Poskim write, however, that this umdena applies only if the person sold properties, not metaltelin (objects). A person will sell property only if he truly plans to uproot himself. Selling metaltelin is no proof of his intentions, because people sell metaltelin all the time, even when they don’t intend to move. In the case of metaltelin, therefore, he would not be allowed to renege if his plans to settle in Eretz Yisrael fall through unless he made a tenai kaful (Rema, Choshen Mishpat 207:3). Other Poskim maintain that this ruling is not definitive. Consequently, even if he sold metaltelin, if the seller is the muchzak (current holder of the possessions) he can void the sale (Shu”t Chasam Sofer, Choshen Mishpat 102, see Pis’chei Teshuvah 27:5).
Some Poskim write that even in regard to property, if someone rented out his property with the express intent to settle in Eretz Yisrael and then couldn’t go, he may not void the lease, because the aforementioned umdena applies only to sales; we are certain that a person would not sell a property unless his plans are realized. But people rent out their properties without resettling, and renting is therefore akin to selling metaltelin, in which case unless he made a tenai kaful when signing the lease, he would not be able to void it (Ketzos Hachoshen 319:1; Porach Mateh Aharon 1:1; see Nesivos 312:7).
However, because, as we noted, that even in regard to metaltelin, some Poskim maintain that if he is the muchzak, he may void the sale and keep his possessions, so in regard to a property he owns (on which he is the muchzak), the tenant might not be able to insist that he leave the property in order to rent it out to him (see Eimek Hamishpat 29:4).
Furthermore, some Poskim rule that rentals of properties are similar to sales, and just expressing the intention to settle in Eretz Yisrael is enough to enable the owner to renege if his plans do not materialize (Shu”t Shvus Yaakov 3:179, cited in Pis’chei Teshuvah 312:6).
Since there are many reasons to believe that Reuven was entitled to renege on his decision to vacate your property once his plans did not materialize, we would have to determine who is the muchzak in this case: Reuven, in which case he should be allowed to keep the apartment, or you, in which case you signed your rights over to Shimon. This is a very complex issue that cannot be resolved in an article (see Shach 312:15, Chiddushei R’ Akiva Eiger ibid.; Nesivos Klalei Tefisah 22; Mishpat Shalom 189; and Knesses Hagedolah, Klalei Kim Li, 25:31,40).
Reuven and Shimon will have to approach a Rav who will offer a fair compromise based on the specifics of the case.
May we be zocheh to hear glad tidings and see a speedy end to this calamity, and may Hashem console the bereaved members of Klal Yisrael.
