The Obligation to Give Advance Notice of the End of a Home Rental Period

In this article we will discuss the source of the law and the rationale for the requirement to give advance notice of the termination of a rental, both on the part of the landlord and on the part of the tenant. We will also discuss the case of a tenant who left before the agreed time: whether he must pay for this, how much, and the reason for it. We will further discuss the contemporary custom in comparison with the time of the Gemara, and the recommendation to include an explicit clause in the contract regarding the date for vacating the apartment.

The Source of the Law Requiring Payment During the “Notice Period”

The Shulchan Aruch rules (Choshen Mishpat 312:1) that one who rents out a house to another for a fixed period may not retract and remove him during that period. Even if the seller became impoverished and needs to sell it to another, he cannot remove the tenant from the house; the sale is nevertheless valid, but the purchaser must leave it in the tenant’s possession until his term is completed. Just as the landlord cannot remove the tenant from the house, the tenant also cannot leave the house during the rental term; and if he leaves the house during the term, he must pay the landlord the full rent, as ruled in the Shulchan Aruch (316:1).

Now, in the case of an employer who hired a worker to perform a job and then retracted in a manner in which he is not permitted to retract, the law is that he must pay him his entire wage. It is explained in the Shulchan Aruch that the employer may deduct the amount of “an idle worker,” meaning the amount the worker would have been willing to forgo in order not to work and to receive a smaller wage; that is the amount paid to him.

The Obligation to Pay When Leaving During the Notice Period

The Shulchan Aruch rules (312:7) that just as the landlord must notify the tenant, so too the tenant must notify the landlord thirty days before leaving the house. If he left without notifying him, he is obligated to pay the rent.

What emerges is that if a person rented out a house to another without agreeing on a time and date for the end of the rental period, and they merely agreed that each month he would pay such-and-such an amount, but did not agree how many months the rental would continue, then, according to the basic law, either party could terminate the rental immediately. However, Chazal instituted a “notice obligation,” meaning that neither party may terminate the rental suddenly; rather, he must notify the other party at least thirty days in advance so that the other can make arrangements — this one to find another apartment, and that one to find another tenant.

The Source and Rationale of the Enactment of the “Notice Obligation”

The source that this is an enactment is found in the words of the Taz (312:11), who writes in the course of his discussion that the notice is an enactment. This is also clear from Ginat Veradim (Responsa, Choshen Mishpat, klal 3, siman 41), who writes as follows: the entire essential right of a tenant to have residence in this house is not by strict law, but only by virtue of the enactment made by the Sages of blessed memory, who granted the tenant time so that he would not be cast out into the streets. For according to Torah law, wherever there is no explicit condition in the rental, the landlord may remove him from his house whenever he wishes. This is also clear from Imrei Yosher (Responsa, vol. 2, siman 152, letter 2), who writes in the course of his words that we find that Chazal were concerned and made an enactment requiring prior notice to the tenant. Likewise, the Maharsham in Mishpat Shalom (siman 176:4) writes that Chazal enacted that he is obligated to notify him in advance for the sake of tikkun ha-olam — social order — so that the landlord not incur a loss.

The Amount Paid by a Tenant Who Left Early

It is explained in Ketzot HaChoshen (316:1) and in Netivot HaMishpat (ad loc., Biurim 2) that even in the case of a tenant of a house who left during the term, and the house stood empty without other tenants, where the law is that he pays the rent, this does not mean that he must pay the entire rent in full. Rather, he may deduct the benefit that the landlord had from the house standing empty, whereby the house is better preserved. All this applies when the tenant cancelled the rental due to circumstances beyond his control. But if he cancelled the rental without a claim of compulsion, the Ketzot HaChoshen holds that he pays the full rent, while the Netivot disagrees and holds that even in this case one deducts the benefit gained from the house being empty.

The Question of the Acharonim: Why Is This Different from Locking Another’s House, Where One Is Exempt?

The Sha’ar HaMishpat (312:2, cited in Pitchei Teshuvah 4) asks from that which is ruled in the Shulchan Aruch (Choshen Mishpat 363:6): if a person locked another’s house in such a way that the owner could not live in it, he is exempt from paying for the damage. If so, how is a tenant who did not inform the landlord that he was leaving the house different? Because of this, the landlord suffered an interruption and could not rent the house to other tenants, yet the tenant is obligated to pay.

The Answer of the Acharonim in Explaining the Reason for the Obligation to Pay

The Sha’ar HaMishpat (ibid.) explains that what is ruled in the Shulchan Aruch — that he must pay the full rent — is not an obligation enforceable by human courts; rather, he does not fulfill his duty before Heaven until he pays. He may be placed under a ban for this, like all cases of indirect damage for which one is placed under a ban until he removes the damage, but a beit din does not extract payment from him.

The Nachalat Tzvi (se’if 7, by the author of Pitchei Teshuvah) holds that by law he is obligated to pay, since he initially entered under the framework of rental, and the rental continues from the outset for another thirty days of the notice period. This is not comparable to one who locks another’s house, who is merely a damager by way of gerama, indirect causation. He cites that the Noda BiYehudah wrote likewise (Responsa, Tinyana, Choshen Mishpat 56).

The Novel View of the Ritva Regarding the Nature of the Obligation to Pay

In Erech Shai (312:14), he explains in accordance with the words of the Ritva (in the sugya of Zulshafat, Bava Metzia 73b, s.v. hai; and this is cited several times in the Netivot: 183:1, 176:38, 304:2, 306:6). There, the Gemara explains that one who brought money to another so that he would buy him wine cheaply during the grape harvest, and he was negligent and did not buy the wine, must pay according to the price at which it is sold in Zulshafat, where it is sold at a high price. The Rishonim ask why he is obligated to pay — how is this different from one who prevents another from using his money, who is exempt because it is gerama? The Ritva explains, in his second answer in the name of his teacher, that in the hiring of workers, the obligation of the workers to pay the employer for what he lost, and likewise the obligation of the employer to pay the workers when he retracted, is based on the law of arev, guarantorship. Just as a guarantor says to the lender to lend to the borrower and he will guarantee it, thereby becoming obligated to pay as a guarantor, here too one can say that the landlord relied on the person who rented the house not to retract, and therefore did not look for another tenant to whom to rent his house. Accordingly, the tenant is obligated to pay the rent for the loss he caused.

The Views That Disagree with the Novel Ruling of the Netivot

However, the Rishonim there in the sugya (the Ritva in his first answer, the Rosh, the Ramban, and the Nimukei Yosef), who asked the question cited above and to which the Ritva gave his answer, explained that the case involved one who handed him the money on the understanding that he would pay if he did not buy. It is explicit from their words that if they did not accept upon themselves to pay the loss, they evidently do not agree with the Ritva’s view that he is obligated because of guarantorship.

The Ruling of the Poskim Not in Accordance with the Ritva and the Netivot

In Mishpat Shalom (176:14), he cites Mareh Panim, who wrote: “I have not found anyone who concurs with this reasoning, and all the poskim stated this law without qualification and wrote that he has against him only a grievance.” This is also ruled in practice in Beit Meir (siman 10). In Divrei Malkiel (Responsa, vol. 5, siman 222), after citing the view of the Ritva, he writes that the Ritva’s words are not the halachah, since this is not found explicitly in all the Rishonim. The Chazon Ish (Bava Kamma 22:1) cites that the Rishonim disagreed with the Ritva. However, the Chatam Sofer (Choshen Mishpat 178) wrote as practical law that no one should disagree with the Ritva; nevertheless, since he did not find it explicitly, “therefore, when it comes before me, I will seek to compromise and settle the matter.” There is much to discuss on this topic, and with God’s help we will elaborate on it in the context of hiring workers.

A Landlord Who Sold the Apartment During the Rental Period

The Shulchan Aruch (se’if 13) rules that if the owner sold or bequeathed the rented house during the rental period, the purchaser and the heir cannot remove the tenant until they notify him thirty days in advance, for the tenant can say to him: you have no greater power than the owner through whom you acquired rights in the house.

In a case where the tenant wishes to leave the house during the notice period, thereby causing a loss to the buyer because he cannot find a tenant to rent the apartment, it would seem that this law depends on the reasoning underlying the dispute discussed above regarding the obligation of a tenant to pay when he left the house during the notice period.

According to the view of the Sha’ar HaMishpat, who holds that he is liable only according to the laws of Heaven because this is considered gerama, here too he is liable only according to the laws of Heaven, for there is no difference whether the loss was caused to the landlord or to someone else.

But according to the view of the Nachalat Tzvi and the Noda BiYehudah, who hold that the notice period is considered part of the rental days, even though one might perhaps say that with respect to the buyer the notice days are not considered part of the rental, since he rented only from the landlord, in truth, since with respect to the landlord it is considered part of the rental, the buyer likewise purchased all the landlord’s rights, including the rental for the duration of the notice period. Therefore, the law is that if the buyer left before his time, he must pay him the rent until the end of the term.

But according to the view of the Ritva, as also ruled several times by the Netivot (the sources were cited above), that this is a matter of an obligation of guarantorship that he undertook, it would seem possible to say that the obligation is only toward the landlord, who relied on him; but with respect to the buyer, with whom he had no dealings until now, he did not rely on him and he did not become obligated. Especially if we say that the entire obligation is only by virtue of an enactment of the Sages, we cannot innovate beyond what they enacted, which was with respect to the landlord himself, but not with respect to the buyer.

It would seem possible to say that one cannot obligate him to pay for leaving the house before the time, since the buyer can say “kim li” — I rely on the view of the poskim who exempt from payment. Perhaps he is obligated to pay under the general law of gerama, but a beit din does not obligate payment.

Cancellation of a Rental for Which No Time Was Fixed

It is stated in the Mishnah (Bava Metzia 101b), and so it is ruled in the Shulchan Aruch (Choshen Mishpat 312:5, 8, 9), that when one rented to him without specification, meaning that no fixed time was agreed upon, the law is that he cannot remove him immediately; rather, there must be a certain amount of time during which the tenant can find another apartment. Likewise, the tenant cannot leave the house unless he notified the landlord beforehand so that the landlord can find another tenant. It is explained that there is a distinction: in the summer, when other apartments can be found easily, thirty days’ notice is sufficient; but in the rainy season, when apartments are less available, he may remove him only after Pesach. In large cities, where it is difficult to find apartments, he must notify him twelve months in advance of his desire to remove him; and for shops he must give three years’ notice. However, if apartment prices have risen, the landlord may raise the rent in accordance with the market price even during the notice period; if the tenant does not wish to pay the higher price, he must leave the apartment.

The Custom in Our Times Regarding the Notice Obligation

In Emek HaMishpat (vol. 5, siman 4, letter 4), he cites in the name of Maran Rabbi Yosef Shalom Elyashiv zatzal that in our times the custom has spread that the notice period is thirty days, both in the summer and in the rainy season. The explanation is that in their times, in the time of the Gemara, moving and transporting belongings during the rainy season was difficult, but in our times this is not so. However, he also cites that Maran Rabbi Yosef Shalom Elyashiv zatzal added that there is room to discuss whether the notice period in our times is determined by secular law.

This is also clear from Ish Matzliach (Responsa, vol. 1, Choshen Mishpat 20), who writes that in a large city such as New York, where many apartments are available in all neighborhoods of the city, and from the teaching of the Beit Yosef, who distinguished in Bedek HaBayit according to his time regarding the shops of bakers and dyers, it is evident that all these laws are not fixed halachot, but rather change according to the time.

It would seem that in places where, in reality, it is impossible to obtain such types of apartments, the landlord must give notice sufficiently in advance, according to the amount of time required to obtain an apartment. For the same reason, I heard from one of the great dayanim that if there is great demand for apartments in that area, the law is that payment is required only for the amount of time in which a new tenant can be found, not necessarily thirty days; rather, each place is judged according to the reality. This reasoning still requires further discussion.

Practical Recommendation

In light of what has been written, it is recommended and desirable to agree in advance in a contract that is halachically valid — and also legally valid, so that it can be enforced by the authorities if necessary — on all the details and conditions of the rental, including a clause regarding the period and time of the termination of the rental. In such a case, the law is that the landlord may demand that the apartment be vacated when the time arrives, even during the rainy season, and he need not give advance notice; likewise, the tenant may leave at the agreed time without advance notice.

From “Torat HaMishpat”