The Parameters and Methods of Kinyan in Renting Houses

  When renting a house or another property, one must know that although it is forbidden to retract even from what was agreed upon verbally, due to the prohibition of being “lacking in faithfulness” {as I wrote in previous articles}, nevertheless a verbal agreement is not considered a kinyan, and it is necessary to perform an effective kinyan, as will be explained in this article.

The status of a verbal agreement

As was written in previous articles, an agreement between parties based solely on verbal speech is not an act of kinyan, but only a clarification between the two parties that they wish to carry out the rental in practice. However, as long as they have not performed an act of kinyan, breach of the agreement by one of the two parties is considered a retraction from words.

However, one must know that it is forbidden to retract from one’s word even without an act of kinyan having been performed, as explained in the Gemara (Bava Metzia 49a): words are subject to the issue of being “lacking in faithfulness.” This is derived from the verse “הין צדק יהיה לך” — “You shall have a just measure,” teaching that your “yes” should be just, and your “no” should be just.

This is also explained in the Gemara regarding the sale of movable property: the Sages annulled acquisition through money and required meshichah, agav, or sudar, and nevertheless if the money had already been received, there is also a kind of curse: “He Who exacted payment from the people of the generation of the Flood and from the people of the generation of the Dispersion will in the future exact payment from one who does not stand by his word.” And so it is ruled in the Shulchan Aruch (siman 204, se’if 7), that anyone who retracts, whether buyer or seller, is among those lacking trustworthiness, and the spirit of the Sages is not pleased with him.

It is thus clear that lechatchilah one should not retract even if the agreement was only verbal and no kinyan was made, because of being “lacking in faithfulness.” However, if one of the parties has justified reasons to retract, there are cases in which he is not considered lacking in faithfulness {as I elaborated in the article “The Force of a Verbal Agreement in Reserving a Vacation Place”}.

Performing a kinyan obligates also what was agreed upon verbally

After a kinyan has been performed according to all the rules of Halachah {as I elaborated in previous articles}, neither party has the ability to retract from the agreement or from any of the conditions agreed upon between them. It must be emphasized that when a kinyan was performed, even what was agreed upon verbally is binding, and one who violates it steals from his fellow, even if it was not written in the agreement. Yet, as we wrote in previous articles, it is very important to write everything down so that the agreed terms cannot be denied [and many dinei Torah could have been avoided had everything been written in detail]. Certainly, however, where a kinyan was performed, it obligates also what was agreed upon verbally, provided that the written agreement does not state otherwise than what was agreed upon orally {see what I wrote in the article “The Validity of a Contract Whose Clauses Were Not All Read in Advance”}.

In our times, a long-term rental is not acquired with money

In the Gemara Bava Metzia (99b), it states: just as land is acquired through money, a document, and chazakah, so too rental is acquired through money, a document, and chazakah. The first kinyan is “kinyan kesef,” acquisition through money. The basis of this kinyan is that the buyer or renter gives the payment as agreed between them, and the purchase price is the money of the kinyan; with the giving of the first perutah, the payment begins, and the kinyan already takes effect in practice.

However, in the Shulchan Aruch (Choshen Mishpat, siman 190, se’if 7), it is ruled: this statement that one acquires with money alone applies in a place where it is not customary to write a deed; but in a place where it is customary to write a deed, he does not acquire until the deed is written. The reason is that an act of kinyan must be through something that gives the buyer and seller firm reliance and final intent. Therefore, where the custom is to write a written agreement and the like, the parties do not rely upon trusting the other side until this manner is followed.

Nevertheless, regarding rental, the Rema ruled (Choshen Mishpat, siman 195, se’if 9) that even in a place where money does not acquire without a document, rental is nevertheless sufficient with money alone. The Sema (s.k. 20) explains that it is not the normal way of the world to write a document for rental, for the renter relies upon it without a deed, since he rented it for a fixed number of days.

There are those who maintain that since in [long-term] rental it is customary to write a contract, and as long as a detailed contract and agreement have not been made there is not yet firm intent, for the parties wish to set everything out in a signed agreement. Consequently, if there is no signed contract, there is no rental.

This is also explained in Mishpat Shalom (siman 195, se’if 9) in the name of the responsum Avnei Tzedek: in these places where the renter demands a contract and will not suffice with a verbal agreement, the law reverts to the rule that money does not acquire.

Common contracts are not considered a deed of acquisition

The second kinyan is “kinyan shtar,” acquisition through a deed. I elaborated in my article {“The Structure of the Common Contract and Its Halachic Validity”} that the contracts common in our times are not considered a shtar kinyan, because with a shtar kinyan the Gemara (Kiddushin 26a and elsewhere) explains that the wording is “my field is sold to you,” meaning language of acquisition and sale. Today these words do not appear, nor any implication of conveyance of ownership, but only a kind of narrative of facts, undertakings, and agreements of the parties. Therefore it has no halachic force as a shtar kinyan, and all contracts and agreements are treated merely as obligations. [In previous articles I explained the manner in which a contract can be considered a kinyan].

Kinyan chazakah in renting a house

The third kinyan is the kinyan of “chazakah.” It is explained in the Mishnah (Bava Batra 42a) that chazakah is effective for a gift, and the Rosh (there, chapter 3, siman 59) writes that the same applies to a sale, as explained in the Mishnah (Kiddushin 26a): property that bears responsibility is acquired through money, a document, and chazakah. However, regarding rental one must examine whether there is a difference between purchase and rental, for in a purchase we require locking, fencing, or breaching; is the same required in rental as well?

The form of chazakah effective in rental

The position of the Maharit (part 1, siman 5, cited in Netivot, siman 192, s.k. 6) is that in rental as well we require locking, fencing, or breaching [and he brings several proofs, and the Netivot discusses this; this is not the place]. But [the Netivot] cites there the Machaneh Ephraim (Hilchot Sechirut, siman 1), and this is also the view of the Ketzot HaChoshen (siman 189, s.k. 1), that the chazakah of rental does not require the same chazakah as in purchase — an actual improvement in the body of the land through locking, fencing, or breaching. Rather, the way of rental chazakah is that the very placing of one’s objects, which is the manner of using the place, is effective. Even though with respect to purchase this type of action is not considered a kinyan, with rental, where one comes to acquire only the right of use, and this is an act that a stranger cannot do, the very use is considered an indication of ownership for purposes of rental.

So too it is explained in Netivot HaMishpat (siman 340, Chiddushim s.k. 6) that one who borrows a bench from his fellow to sit on it — the very use is considered a kinyan in the right to sit on the bench. [Many proofs are brought for this, and this is not the place].

The approach that the nature of rental is that the land is encumbered for the renter’s use

The Netivot HaMishpat (there), after discussing the view of the Maharit and his proofs — which is not the place to elaborate on here — explains a different definition of the kinyan of rental: in truth, chazakah of uses is not a complete kinyan, but rather it encumbers the body of the land for the uses upon it. That is, there is no acquisition of the body of the property, only a mere encumbrance. Therefore there is no need for a chazakah of locking, fencing, or breaching, because the renter does not want the courtyard to be his; it is of no concern to him who the owner is. He merely acquires the right that the landlord encumbers for him a place in his land so that he can use it for all his needs.

For this reason, a kinyan of beginning the use is sufficient. With this he explains other cases in which there is a kinyan through the beginning of use, such as sitting in a place in the synagogue. He writes: the body of the land and the synagogue belong to the public, and each individual has only an encumbrance of sitting in that place, end quote.

HaGaon Rabbi Naftali Nussbaum shlita (Kovetz HaYashar VeHaTov, vol. 3), after bringing the views of the Maharit, the Machaneh Ephraim, and the Netivot [and there he brings various laws in the Shulchan Aruch that depend on this dispute, some of which are brought below], wrote that upon examining the words of the Netivot it appears that the definition of the kinyan of rental depends on the type of chazakah the renter performed. If he took possession by placing objects, he has only an encumbrance on the personal level — that the owners obligated themselves to provide him with the rented item. But if he took possession by locking, fencing, or breaching, then indeed he will have a kinyan in the body of the property, whereby the body of the item is acquired by him with a complete kinyan regarding the right of use. According to this, a new definition emerges in the kinyan of rental [and there are several practical ramifications, but this is not the place].

Whether kinyan chatzer is effective in a rented courtyard

Seemingly this law depends on the two approaches. According to the first approach, that he acquires the courtyard with respect to use, consequently the renter also has kinyan chatzer and acquires a found object that fell into it. But if one follows the second approach in the Netivot, that the kinyan is only an encumbrance in the property and he has only a right of use, then the courtyard itself is not his, and it remains in the possession of the landlord; consequently, he will not acquire a found object that fell into the courtyard, for both the body of the property and its produce belong to the landlord.

If the renter died, how much must be paid

The Rema ruled (Choshen Mishpat, siman 312, se’if 1): one who rented a house to live in and died during the rental period need pay only for what he lived in, for the landlord is like a worker and should have stipulated; however, some disagree.

The explanation of their dispute appears to be based on the two above approaches. The view of those who hold that one must pay for the entire time rented, even if he died in the middle, is because they hold that the nature of the kinyan of rental is an acquisition in the body of the property itself, that the uses were acquired by the renter. If so, there is no distinction between purchase and rental. Just as one who purchases an item and, due to an unavoidable circumstance, does not benefit from it must pay the full sum, so too one who rents a house for a period acquired the house for his uses for that period, and consequently must pay even for time during which he did not actually benefit because of the unavoidable circumstance.

However, the view of those who hold that he need pay only for the time he lived there is because, in their opinion, the nature of the kinyan of rental is only an encumbrance: the landlord encumbers his house for the renter’s uses. This is considered a personal obligation — that at each moment he has the right to take uses from the landlord, who is obligated to provide them. Therefore he pays only for what he takes, and when he does not benefit from the encumbrance that gives him rights of use in the house, there is no obligation of payment.

Whether kinyan sudar is effective for rental

Today it is very common in all kinds of agreements and undertakings to perform kinyan sudar, which is a kinyan chalipin. This is learned from Boaz (Ruth 4:7), who said: “וזאת לפנים בישראל וגו' לקיים כל דבר, שלף איש נעלו ונתן לרעהו” — “Now this was formerly in Israel… to confirm any matter: a man would remove his shoe and give it to his fellow.” This kinyan is effective for land, and one must consider whether it is effective for rental.

Tosafot (Bava Metzia 11b, s.v. Mekomo; Kiddushin 27a, s.v. Mekomo; Arachin 29b, s.v. VeLo Yadana) hold that rental is not acquired through chalipin. [They bring several proofs there, and this is not the place]. However, the Rosh (Bava Metzia, chapter 1, siman 31) disagrees [and rejects the proofs] and holds that rental is acquired through chalipin, and the Shulchan Aruch (Choshen Mishpat, siman 195, se’if 9) brings both views.

It is possible to explain that Tosafot held according to the approach that this is only a right of use that the landlord encumbers, and kinyan sudar is effective only to acquire the body of the item, for the definition of the kinyan is like the language of the verse “לקיים כל דבר” — “to confirm any matter,” requiring real confirmation; therefore it does not acquire. But the Rosh and those who disagree hold like the first approach, that the rental kinyan is an acquisition of a right of use in the body of the property, and consequently there is something upon which the kinyan sudar can take effect.

Practical recommendation

When agreeing on the rental of a property, one should not lechatchilah rely only on kinyan sudar, nor on kinyan kesef, since there are those who hold that this is effective only for short-term rental. But today the custom is that for long-term rental a contract is drawn up, and consequently money alone does not acquire. Therefore, lechatchilah one should write a contract with all effective kinyanim. As I wrote in the article {“The Structure of the Common Contract in Our Times and Its Halachic Validity”}, aside from the matter of the kinyanim, the fact that everything is written and clear prevents many problems and distress for the parties. Therefore it is recommended to consult with an expert dayan before signing any agreement or contract.

From “Torat HaMishpat”