The Nimukei Yosef is quoting the Gemara in Bava Metzia (35b) which discusses a case where one rents a cow, and he then lends it to his friend, and it dies in a normal manner. The Tanna Kamma holds, that the renter makes an oath that it died in the normal manner, and the borrower then must pay its value to the renter. R’ Yosi argues and says: כי צד הלה עושה סחורה בפרתו של חבירו – “How can it be that the renter can make money from the cow of his friend (the owner)?”. Rather, the borrower should pay the original owner and not the renter. We rule in accordance with R’ Yosi. The Nimukei Yosef maintains that the same thing should be in our case, and if the renter manages to sublet the apartment for a better price, the extra money should be given to the original owner, as כיצד הלה עושה סחורה בפרתו של חבירו – why should the renter be able to make money, from the apartment of the owner?
The Nimukei Yosef continues: If the renter had permission to do so, or the second family didn’t have a larger family, then he may keep the profit.
The Rema (Choshen Mishpot 363:10) rules accordingly: “If one rents a house from his friend and then sublets it to someone else for a higher price. If he had permission to do so ... he can keep the profit, if he didn’t have permission then it goes to the original owner”.
If we apply the above to our case of a Ben Chutz La’aretz who is renting an apartment in Eretz Yisroel and has gone back to Chutz La’aretz for a few weeks, or one who rents an apartment all year round in Tzefas and he wants to sublet it for a few weeks in the summer and in both cases they make a profit, the tenants would be obligated to give any extra money they make to the owner of the apartment. If they had clear permission from the owner of the apartment that they are allowed to do so, then they would be able to keep the profit (even if the contracts forbid the renter from subletting), however, without permission it would seem that they must give the profit to the owner.
The Machneh Ephraim (Hilchos Sechirus end of siman 19) understands that the chiddush of the Nimukei Yosef only applies if the first tenant got the apartment for a price cheaper than what it’s worth, if, however, he got it a standard price then he is allowed to rent it out and he may keep the money. However, the Erech Shai (316:1) says that from the simple reading of the Nimukei Yosef and Rema it seems that there is no distinction and in all cases the money must go to the original owner.
Furnished Apartment
If the furniture in the apartment belongs to the renter, then there is room to say, that even if he isn’t allowed to rent it out, he still has the right to keep part of the profit as the tenant subletting the apartment is using his furniture. It’s obvious that there is a difference in price between a furnished and unfurnished apartment. However, he would still be obligated to give most of the profit to the owner.
However, perhaps the renter could put in an argument that he is entitled to most of the profit, as without any furniture, no one would even consider renting the apartment – who would want to go on holiday and stay in an apartment without any beds or basic furniture.
Apartment Swaps
Finally, lets discuss the case of the family living in Ramat Bet Shemesh who swapped their apartment with a family living in Yerusholayim for two weeks during bein hazmanim.
Generally speaking, apartments in Yerusholayim are worth a lot more than apartments in Ramat Bet Shemesh. For arguments sake, let’s say an apartment in Ramat Bet Shemesh is worth 4,000 shekel a month, whereas in Yerusholayim the same size apartment is worth 6,000 shekel a month.
If these are the prices it comes out that an apartment in Yerusholayim for two weeks is worth around 3,000 shekel and an apartment in Ramat Bet Shemesh is worth 2,000 shekel. It comes out that the family in Ramat Bet Shemesh gains 1,000 shekel from the swap.
That being the case, perhaps an argument can be made, that the family in Ramat Bet Shemesh who gained 1,000 shekel from the swap must pay the owner of their apartment 1,000 shekel?
To avoid this issue, some suggest that that family in Yerusholayim (who have the more expensive apartment) should tell the family in Ramat Bet Shemesh to keep the extra 1000 shekel as a present. However, others say that it doesn’t help, as it isn’t really a present and it is just being done to avoid the above issue. Therefore, really the owner of the apartment in Ramat Bet Shemesh should be receiving the extra 1,000 shekel. However, this is certainly not the custom. What we have to say is, that the two renters forgive each other, or that they simply don’t care about the price difference (like we say there is no ona’ah on land).
What I mentioned above is what I saw R’ Yom Tov Sanger mentions in a Teshuvah. I asked the above shailah to R’ Fleischman’s Choshen Mishpot Beis Din and they sent me something which I think is much simpler, they said: You are not paying him for his apartment, and he isn’t paying you for yours, therefore, you didn’t “make any profit” on the apartment. You are just getting a more expensive one, because the other person is nice enough not to charge you, but it is not considered “making money” on the landlord’s expense.
