Siman 312

One who leases a house to his fellow, or a courtyard, or a bathhouse, or a shop for a fixed time, cannot retract and remove him within his time; even if the house of the lessor fell so that he has no place to dwell, and even if the lessor became poor and needs to sell the house, he cannot remove him from the house until the time of his lease. It is within the power of the lessor to sell it even within the days of the lease, and this is not like one who sells something that is not his, for the house even now belongs to the lessor; for we do not say "a lease for a day is a sale" except regarding matters of kinyanim, as written in siman 315, and likewise regarding ona'ah, as written in siman 227, but the body of the house belongs to the lessor [Tosafot Avodah Zarah 15a and Nimukei Yosef, chapter HaSho'el]. Therefore, it is within his power to sell it and the kinyan takes effect immediately, but the buyer cannot remove the lessee until his time. Even if the lessee has not yet entered into the house, since he took possession by way of a kinyan effective for a sale, he has acquired it in this regard, that he cannot be prevented from entering and dwelling in it until the time of his lease. And even if the lessee or his wife became ill after the completion of the kinyan of the lease and he has not yet entered, such that it is not fit to enter now, nevertheless the lessor cannot prevent him from entering when he recovers [see Shach].

Just as the lessor is able to sell his house within the duration of the lessee's rental period, so too is he able to lease it to another within the rental period of the first, such that the other will enter into it after the conclusion of the first one's time [Shach]. The acquisition of the lease takes effect immediately, even within the time of the first, not like the one who wishes to say that the acquisition does not take effect until after the time of the first; for there is no difference between a sale and a lease regarding this matter. Regarding a sale, it is explicitly stated in the Yerushalmi [Pesachim chapter 4 and Bava Metzia chapter 8] that he can sell it within the time, and this is not considered a thing that is not in his possession nor a thing that has not yet come into the world, for behold, even now it is in his possession and has come into the world, as a deficiency of time is not called a thing that has not yet come into the world [Mishneh LaMelech chapter 7 of Ishut]. There is one who wrote that he must say "from now," but it is not so, for ordinarily it is as if he said "from now," except that the second lessee must know that it is still with the first until such-and-such a time, for if not so, it is an acquisition in error. However, the essence of the acquisition takes effect from now even without saying "from now," since the essence of the house is his [and so wrote the Rivash siman 510, and so wrote the Netivot HaMishpat, and see the gloss of the Sma at the beginning of siman 315].

Our teacher, the Rema, wrote: And if it was leased in a manner that he would never be able to redeem it if he did not sell it, he may sell it and remove him immediately. Thus far his words. And this law is from the Yerushalmi there, regarding an incident where the house was mortgaged to a certain oppressor in a manner that if the lessee did not vacate it, it would be permanently forfeit to the oppressor, and they instructed that the lessee vacate immediately [Mordechai, chapter HaShoel]. But this law is perplexing, for it is also explained there that when the house of the lessor falls, he may remove the lessee from his house, and we do not rule accordingly, as I wrote in section 1. Furthermore, there is one who explained the Yerushalmi in another manner, that the house was mortgaged to an Israelite and he did not have the ability to redeem it, and they permitted him to sell it and that the buyer should redeem it, as will be explained in this siman. Furthermore, the version before us in the Yerushalmi is that the children were held as collateral for the debts in the hands of the oppressors, and if he did not vacate the house, the children would remain in imprisonment, and there is an issue of pikuach nefashot in this. Therefore, there are some of the great authorities who hesitated regarding this law. However, our teacher, the Rema, holds that even though when the house of the lessor falls he cannot remove him, nevertheless, where he would lose it entirely, they compel him to vacate, for it is a strong assessment that he did not lease it on such a condition, and it is no worse than all the assessments in siman 246. And it appears to me that if the cause of the loss of the house was already present at the time he leased it, it is certainly a strong assessment and it is like a lease in error, for even in a sale, the sale would be voided with a disclosure of intent in such a case; but if the cause came into being afterward, he cannot remove him.

If he stipulated with the renter that he would have the ability to remove him for his own needs and then sold it to another, the buyer cannot remove him. And even though the first sells to the second every right that he possesses, nevertheless, since the condition is regarding something that is not defined and there is nothing upon which the kinyan can take effect, he does not bequeath it to his heir, as I wrote in siman 209, and all the more so he cannot sell it [the Gra]. And to whom he shall give the rent will be explained in section 6.

Even if he hired him indefinitely and not for a fixed time, but rather made a transaction with him for such and such per month or per year and advanced him his wages, he cannot remove him even for a long period until the time of all the wages he advanced him is exhausted. For presumably their intention was thus, that he should dwell corresponding to his money that he advanced him even if they did not explicitly state it, for if not so, why did he advance him so much wages? And there is one who disagrees in this because we hold that the money is not proof, as written in siman 220 [Shach]. However, the primary view is like the first opinion, for in a place where the money does not contradict his words, the money is proof; for specifically there, where the yoke is not worth so much, the money contradicts the act, but here we say that he hired him for a long time [Ktzot HaChoshen]. Furthermore, rental is not similar to a sale, for in a sale where one must pay immediately, since he gave him more, the money is a gift, for if not so, why did he give him more? But in a rental, which is not paid until the end, and he agreed to advance him the wages, if so, what do you see to say that he only gave it to him for a year? Behold, even for a year he did not need to give to him now, and nevertheless he gave to him; if so, let us say that he gave it to him for many years [it appears to me].

Regarding that which was explained in section 4, that when he stipulated with the renter that he may remove him for his own needs whenever he desires and he sold it to another, the other does not have this right and the renter shall dwell in it until the time for which he rented; but nevertheless, he must give the rent to the buyer. And if he already paid his rent in advance for a long period, the buyer cannot remove him even though he will not receive rent until the depletion of the funds that he gave to the first [Sma and Shach].

One who leases a house to his fellow for a set time, and within the time the lessor wants to rebuild it, he cannot compel the lessee to vacate it, even if he gives him a house more beautiful than it, and even if he will return him to this house after he builds it [Sma]. And also, even if he leaves him now to dwell in it and requests to bring laborers into the house to repair what requires repair, nevertheless, he can protest against him and say that he cannot tolerate the noise of the laborers and the work. However, we request of the lessee to act beyond the letter of the law, for this is close to the trait of Sodom and is not of the trait of the seed of our father Avraham, of blessed memory. And it will be further explained in section 32 and section 34.

The Rambam [chapter 5] and the Shulchan Aruch section 2 wrote: If he went back after leasing it to this one and leased it or sold it to an extortionist who nullified the lease of the first, he is obligated to lease him another house like it, and so too anything similar to this. Thus far their words. And the explanation of the matters is that even though the lessor was forced to do so and is under duress, we do not say that the Merciful One exempts one under duress; rather, he is obligated to lease him another house like it, and even if he said to him, "This house I am leasing to you," for it is forbidden to save oneself with what belongs to one's fellow. And it appears to me that this is specifically when he leased or sold to the extortionist, but if the extortionist entered this house on his own against his will, even if he pays rent to the lessor, nevertheless he is exempt from the lessee; since he did not act with his hands and the extortionist acted on his own, the Merciful One exempts one under duress. However, if he took from the extortionist more rent than what he had agreed upon with the lessee, it appears to me that he must give the remainder to the lessee. And this is a simple matter, that if he took the rent from the lessee for the future, he must return it to him. And if the extortionist does not pay him anything, it is possible that it is the loss of the lessee, for his fortune caused it, and until this time, even if he did not give it to him, he shall pay him. And see what I wrote in siman 310, section 11.

If one mortgaged it for known years at such-and-such for each year for as long as he does not redeem it, and he went back and sold it to another, the buyer cannot take it from the lender within the first year, for an unspecified mashkanta is for a year [Bava Metzia 68a]. However, after the year, he can take it.

One who leases a house to his fellow for a fixed time, once the time has concluded, he may remove him immediately, even if the time concluded in the middle of the rainy season. And likewise, the lessee may leave immediately, and they do not need to notify one another beforehand as in the case of one who leases without specification, which will be explained; for since he leased for a [fixed] time, both of them know that when the time arrives, the lessor has the authority to remove him immediately and the lessee to leave immediately.

One who leases a house for a fixed time, even though the houses increased in value or decreased in value, they cannot add nor subtract, which is not the case with one who leases indefinitely, as will be explained. And if the lessor died within the time, the heirs cannot remove him until his time, which is not the case with one who leases indefinitely. And if the lessee died within the time, the lessor cannot compel his heirs to dwell in it until the time, and there are those who disagree on this, and it will be explained with the help of Heaven in siman 334.

One who rents a house to his fellow indefinitely, there is one who says that he may evict him immediately, for he may say to him: "I only rented to you for one day," as land remains in the possession of its owners, just as in one who says "so-and-so shall dwell in this house," even one day and one hour is implied, as has been written in siman 212 [Sma]. But they disagreed with him, for there he gave it to him of his own accord, but one who rents a dwelling does not rent for less than thirty days [Shach], and thus our sages, of blessed memory, said: A person does not trouble himself to rent a house for less than thirty days [Rosh Hashanah 7b]. And if the custom in the city is that those who rent dwellings do not rent for less than a year, even one who rents indefinitely is not for less than a year [Taz], and such is the primary ruling. The Rambam, of blessed memory, wrote: If he rented it to him for lodging, it is no less than one day; for a Sabbath stay, no less than two days; for a wedding, no less than thirty days. And there is a version in the Tur: for a wedding, seven days. And this matter is according to the custom.

One who rents a house to his fellow without specification, without fixing a time, but rather they fixed a price of such and such per month, he cannot remove him until he notifies him thirty days in advance so that he may find a house to dwell in. For since they fixed a price and he rented it without specification, not for a fixed duration, the renter relied upon the fact that he would dwell in the house as long as the owner does not notify him in advance. In what case is it said that thirty days suffice? In the summer months, from Pesach until Sukkot. But in the rainy season, when he did not notify him thirty days before Sukkot, he cannot remove him until Pesach, for in the rainy season it is difficult for a person to move himself from house to house, and upon this he relied from the beginning—that he would not move him in the rainy season since he did not fix a time. However, if he fixed a time, he must leave even in the rainy season and even without prior notification, as I wrote in section 11. And likewise, the renter cannot leave in the rainy season when he rented without specification, for renters are not commonly found in the rainy season, and the owner relied upon this—that he would not leave in the rainy season.

Therefore, if the lessor desires that he vacate after Sukkot, he must notify him on the fifteenth of Elul so that he will have a period of thirty days until Sukkot to rent an apartment. And if even one day remains within the festival—for example, if he notified him on the sixteenth of Elul—he cannot evict him until the conclusion of Pesach, and even then he must notify him thirty days in advance. The notification in Elul is not sufficient because much time has passed, and a new notification is required before his departure [Sma]. And there are those who disagree on this [the Gra]. [And regarding what is written in the Rambam and Shulchan Aruch, section 6, "he fixed a time for him," it should be "he shall fix a time for him" if he wishes to evict him during the rainy season].

Our sages, of blessed memory, said [Bava Metzia 101b] that this which suffices with a notification of thirty days, in what case does this apply? In average towns. But in large cities, whether in the summer months or in the rainy months, one must notify him twelve months in advance because the settlement there is crowded and it is difficult to find a dwelling; therefore, a long time is needed to obtain a dwelling. And therefore, one who wishes to lease a dwelling in a large city for less than twelve months, or a renter who wishes to rent for less than this time, they must establish a fixed time, for if not so, he will necessarily dwell there for twelve months even if he notifies his fellow on the first day of his entry.

One who dwells in the shop of his fellow without a fixed time, but rather he rented it for such and such per year or per month and did not specify for how many years he is renting to him, the lessor cannot remove him unless he notifies him twelve months in advance, even in towns. For a shop is not comparable to a dwelling, because the shopkeeper extends credit to many people and they know that this is the location of his shop, and he requires twelve months to collect his debts; and regarding what he will credit from now on, he will notify them that his shop will be in such and such a place. And regarding a shop of bakers and of dyers, the sages, of blessed memory, said that he must notify him three years in advance, because their extension of credit is for a long duration. And so too in this time, if a type of merchandise is known whose extension of credit is for a lengthy duration, he must notify him three years in advance. Therefore, one who wishes to lease such a shop for less than three years, and similarly an ordinary shop for less than a year, should lease it explicitly for such a time; and so too for the lessee. And a house of livelihood has the same law as a shop.

In these laws, the lessee and the lessor have the same law; for just as the lessor must notify in advance, each according to his time as has been explained, so too must the lessee notify when he wishes to leave so that the lessor may seek a lessee for himself. And if he did not notify him, he cannot leave, or he may leave and pay rent for this [period] as well, or place another in his stead who is like him. And if he wishes to place for him a person who is not decent or an enemy of the lessor, the lessor need not accept him, as I wrote in siman 316. And even though in large cities the lessees are pressed for dwellings and not the homeowners who are lessors, and why must the lessee notify him twelve months in advance? However, it follows that since the lessees are pressed, each one prepares a dwelling for himself a long time [in advance], and it follows that without a long preparation time, he will not find someone to whom to lease; and so it is with shops.

Even though we have said that the landlord cannot evict him nor can the tenant leave until he notifies him beforehand, nevertheless, if the houses increased in value or decreased in value, each one has the right to change the price. For example, if they increased in value, the landlord can say to the tenant: "Either pay from now according to the high price or leave it," since we did not set a fixed time. And if they decreased in value, the tenant can say: "Either I will pay you from now according to the low rate or I will leave it." And the reason is that while the landlord does not have the power to evict him and the tenant does not have the power to leave without prior notification, regarding the price, since the rate changed and they did not set a fixed time, the law is that the payments are according to the current price. However, this is specifically when they notified one another that they wish to change the price because of the change that occurred in the prices of dwellings; but if they did not notify and remained silent, they presumably both agreed to the first price, for if not so, they would have notified one another. And all this is in an unspecified case, but if he rented for a fixed time, they cannot add or subtract, as I wrote in section 10 [what is written in the Shulchan Aruch section 9 "and even though the time for notification passed" requires further study; see the Sma].

Our teacher, the Rema, wrote in section 9: One who rented a house to his fellow and was his friend and became his enemy, he cannot remove him from the house; but if he said to him at the outset that he is only renting to him because he is his friend and he became his enemy, he can remove him. Thus far his words. And this is in a case where he rented it to him for a fixed time, or even without a specified term, only that he cannot remove him without prior notice. And that which he wrote, that when he rented it to him because of his friendship and he became his enemy he can remove him, this is when he said to him explicitly: "I am only renting this house to you because of your friendship, and without this I would not have rented it to you" [Netivot HaMishpat], for this is like a condition; for if not so, even when he said to him "Behold I am renting it to you because of your friendship" and he became his enemy, he cannot remove him, for this is neither a condition nor a complete disclosure of intent [Ketzot HaChoshen siman 319]. And also, even when he said to him "I am only renting it to you because of your friendship and without this I would not have rented it to you," this is specifically when the renter caused the enmity; but if the owner caused the enmity, he cannot remove him even in such a case [Taz and so it appears from Nimukei Yosef there].

One who rented without a specified term, and the house of the lessor in which he was living collapsed, and he has no other house besides the house of the lessee, he may remove the lessee from his house even without thirty days' prior notice and even during the rainy season. For he says to him: It is not right that you should sit in my house until you find a place while I am cast out in the street; behold, you did not rent for a set time, and you are not a holder of rights in my house such that you should dwell in it more than I, and the notice is only so that one may find an apartment, and automatically, since it is my house, I am the holder of rights in it more than you [see in the Shulchan Aruch, section 11, and examine carefully]. And this is specifically when he rented without a specified term, but if he rented for a known time, he cannot remove him within the time, as I have written, for during this time it is like his very own. And there is reason to doubt in the case of a shop rented without a specified term and the shop of the lessor collapsed, whether he can remove him, since for the lessee there is a loss of debts in this, and for the lessor there is no difference whether he settles in this shop or in another shop since he did not sit in it previously; and it appears that he cannot remove him.

If the lessor gave the house of the lessee, which was leased without a specified term, to his son to marry a woman therein: if he knew beforehand that his son would be a groom at such a time and it was possible for him to notify the lessee earlier and he did not notify him, he cannot remove him. But if a woman happened to be available for his son now and he is marrying her immediately, and he has no other house to give to his son, he may remove the lessee even without prior notification; for it is not according to the law that the lessee should sit in his house while he searches for a house for his son the groom. And likewise, if he is forced to take his son and his wife, or his daughter and her husband, to his table and he has no other dwelling for them and he did not know beforehand, he may remove him even without notification, since he did not lease for a fixed time, as has been written.

If one sold the house, or gave it as a gift, or bequeathed it, the second party cannot evict the renter until he notifies him thirty days in advance, and in large cities or for shops, twelve months in advance as has been written. His law with this party is the same as with the first, for the renter says to him: Your power is no greater than the power of the one from whom you acquired it. And even though this second party did not know that he dwelt there without a set term and thought that he rented for a fixed time and would not require prior notification as has been explained, nevertheless, the renter should not lose out due to his lack of knowledge, for the renter comes by power of the right of the first party.

An incident occurred in a certain place where they had a fixed time for the renting of houses, and at this time most of the city rents and leases houses. Reuven rented a house from Shimon at this time for one year, and after the year concluded, Reuven lived in it for some additional time, and they did not speak with one another at all regarding the coming year. Reuven wanted to leave the house and pay for the portion of the year that he lived in it, and Shimon prevents him from leaving until the completion of the second year. The Rosh ruled that the law is with Shimon, for since they have a fixed time, Reuven should have notified Shimon that he would not live there the entire year, and the choice would have been in Shimon's hand to agree to this or not. Since he did not notify him, and most house renters have already rented, Shimon will not have anyone to whom to lease. Therefore, he is compelled to live there until the end of the year or to establish a neighbor like himself in his place for the price that he paid [it appears to me]. And so too the reverse: if the lessor wants him to leave in the middle of the year, the lessee has the power not to leave until the conclusion of the year with this claim, that he will not find a proper dwelling, or he must provide him with such a dwelling.

And from this we have learned that in a place where there is no fixed time in the city for the renting of houses, or when there is a fixed time but this tenant rented from him for a year not during the fixed time, and upon the completion of his year he lived there for a little more time and they did not speak with one another, the tenant is able to leave before the completion of the second year and also the landlord is able to rent it to another, provided that they notify one another 30 days in advance according to the law of an unspecified tenant that has been explained. However, in large cities, and regarding a shop or a house of livelihood, he will naturally dwell there also for the second year since it requires notification 12 months in advance if he rented without specification. But at the completion of the second year, the tenant may leave and the landlord may rent even without prior notification, for it is as if he rented it for a set time; since in the first year he rented it for a set time, naturally the second and third and so on are considered as if he rented for a set time, for it is based on the first term that he dwells there [it appears to me].

Two who were dwelling in a house and were divided over the house, this one says "it is mine" and this one says "it is mine," and afterward one was found liable in judgment, he must leave even in the middle of the winter, even though the second did not notify him beforehand. For in this case notification is not applicable, for behold, he did not know that he would prevail. Furthermore, this is like one who rented for a term, for each one knew that when his fellow would prevail in judgment, he would compel him to leave, for behold, he dwelt in it under the status of an owner and not under the status of a renter; and since he is not the owner, he is obligated to leave immediately.

One who leases a house for a year for such and such an amount and the year was intercalated, it is intercalated for the benefit of the lessee, and he does not need to pay for the intercalation. This is so even if the lessor did not know that the year was intercalated, for the intercalated month is included in the year. There is no difference whether he leased it to him on Rosh Hashanah or in the middle of the winter. However, some say if he leased it to him on Rosh Hashanah and said to him, "I am hereby leasing it to you for one year" or "for a year" without specification, the intercalation is not included; since he did not say "for this year" and said "for a year" without specification, his intention was to exclude the intercalated month [Sma]. And in the middle of the year, he is forced to say "one year" or "a year" without specification, for if he were to say "for this year," he would only have leased it until Rosh Hashanah. But from several Rishonim it is explained that there is no difference, and even at the beginning of the year the law is the same as in the middle of the year. So too, if he leased it for many years and there were several intercalated years among them, we do not count the intercalations. Furthermore, even if he leased it to him for a year and the year was a simple year, and at the conclusion of the year he lived there another year and this year was intercalated, the lessor cannot say, "Behold, you lived here without specification based on the first year, and since that year was not intercalated, I will not count the second intercalated year for you as the purchase of a simple year"; rather, he counts it for him as a simple year. See what I wrote in section 30. However, if he leased it to him for each month for such and such and the year was intercalated, it is intercalated for the benefit of the lessor, and he must pay him for the intercalation. Even if he leased from him for twelve months, which is the cycle of a year, nevertheless, since he mentioned the term "month," the intercalation is not included. And if he leased it to him for solar months according to the calculation of the nations, there is no intercalation here, for intercalation only exists in lunar months according to the calculation of Israel, and the intercalation is a completion to the solar months.

One who leases a house to his fellow and mentioned to him a month and a year, such as if he said to him, "I am hereby leasing you my house for a dinar per month, twelve dinarin per year," or if he preceded the year, saying, "I am hereby leasing you my house for twelve dinarin per year, a dinar per month," behold the intercalated month belongs to the lessor, and he must pay him for the intercalation. This is because we are in doubt regarding two phrases placed adjacent to one another that contradict one another, whether to follow the first phrasing or the last phrasing, and land remains in the possession of its owner. The lessor is considered the possessor and the lessee is considered the one seeking to extract, and the burden of proof is upon him. And even though the lessee already dwelt therein during the intercalation and the lessor comes to extract the rent from him, nevertheless, since the doubt was not born now but was born from the beginning of the month, and the land stands in the possession of its owner, it turns out that he dwelt in that which belongs to his fellow and must provide him rent. And some say that this is only in an unspecified case, but if the lessee claims, "It is certain to me that you said the intercalation would not be counted," we do not extract from him [Shach], and he takes a hesset oath and is exempt. And even though in every place where we say land remains in the possession of its owner a claim of certainty by the opposing party is of no avail, as written in siman 317, that is regarding a clarified matter where the fruits he ate emerged from the land, such as there; but here, when the lessee claims certainty, the fruits of the intercalation never belonged to this land, and since the lessee is the possessor we do not extract from him. However, when he does not claim certainty and the doubt is in the essence of the law, the lessor is considered the possessor.

And all this is regarding land, but regarding movable property, wherever we are in doubt whether we seize the first wording or the last wording, whoever has seized possession, we do not extract it from his hand, as written in siman 200 regarding one who sells a kor for thirty, a seah for a sela. Therefore, one who hired a melamed for his son and said to him two such wordings, and he taught with him the intercalated month, he does not need to pay him for the intercalation. But before he has taught, if the melamed does not wish to teach with him unless he pays him for the intercalation, he cannot compel him to teach without payment, for beforehand the melamed is the possessor. And regarding movable property, seizing possession is effective even in a case of doubt, provided that the seizing of possession was with permission, as in this case. [ibid.]

It appears to me that regarding these two phrasings, if he stipulated with him that he should pay him rent every month, the phrasings do not contradict one another and we fulfill both of them, and the intercalated month belongs to the lessee, whether in land or in movable property. And we say that the lease is for a year, and because rent is not paid until the end and he stipulated with him that he should pay him every month, therefore he mentioned a dinar per month. And even though after this he also said this thing as well, that he should pay him every month, nevertheless he mentioned it to him also at the beginning of the words because such was his intention, that he should pay him every month; for wherever we are able to say that the phrasings do not contradict one another, we fulfill both of them [see Tosafot Bava Metzia 102b and Zevachim 30a].

One who rented from his fellow for a year, and that year was not intercalated, and afterward he dwelt in it without specification for several years, and the lessor claimed, "I only rented to you for a year, and from then onward I will charge you by the months, and I am the possessor of my house," his claim is not a claim, for presumably he dwells based on the terms of the first transaction, unless the lessor informs him thirty days in advance that his desire for the future is not to rent by the year but only by the months; and see what I wrote in section 24, etc. And if he rented until Adar and they did not specify whether it was the first Adar or the second, the lessor is the possessor and he shall dwell in it only until the first [ibid.]. And it appears to me that the law of renting is like the law of vows that was explained in Yoreh Deah siman 220. According to the Rambam, if he knew that the year was intercalated, an unspecified "Adar" is the second Adar. According to the other poskim, there is a distinction between whether he said "until Rosh Chodesh Adar" or whether he said "until the end of Adar," for regarding vows we establish that we follow the common language of people, and regarding renting it is obvious that we follow the common language of people, and this is not a doubt at all, even though there are some of the poskim who disagree even regarding vows. And some say they shall divide the month [Hagahot Ashri, end of chapter HaShoel], and so it is found in the Tosefta, chapter 8 of Bava Metzia. And it is possible that they are in doubt whether we say in this case "land remains in the possession of its owner" or not [and the Shach rejected this, and it is difficult to rule against the Tosefta].

If the lessor says, "I leased it to you for a specific time," and the lessee says, "I only leased it without specification, and you should have notified me thirty days in advance," or if he says, "I leased it from you for a long period," the lessee must bring proof, for land remains in the possession of its owner. If he does not bring proof, the lessor swears a shevuat hesset and removes him from the house. His law is not like one who admits to a partial claim who would swear a shevuat de'oraita, for the leasing of land is like land itself, and one does not swear a shevuat de'oraita over this, as I wrote in siman 95 [Shach]. And so it is with every doubt that arises between one who dwells in the house of his fellow and his fellow, the homeowner, unless he has occupied it for the years of chazakah, for then he is believed with a migo of "I purchased it from you"; see what I wrote below in siman 315 and 317. And if he already dwelt in the house and a denial arose between them regarding money—where this one says, "I paid you," and this one says, "You did not pay," or where this one says, "The price was such," and this one says, "It was such"—it is like all monetary laws: one who admits to a partial claim shall swear a shevuat de'oraita, and if he does not admit to a partial claim, he shall swear a shevuat hesset, for regarding past rent, the law is not concerning the land but concerning the money [ibid.].

It has already been explained in section 7 that if the lessor wishes to demolish the house of the lessee within his term, the lessee may prevent him. And if the lessor transgressed and demolished it within the term, he is obligated to provide him with another house like the house he leased, or he shall lease such a house for him. And if the house fell on its own: if he said to him, "This house I lease to you," he is not obligated to rebuild it, for since he said "this house" and it fell, this house is no longer here. And even if the lessee says, "I will build it from my own funds," we do not listen to him. And we do not say regarding a house that if there is enough value in the ruins to buy or lease another house, he should buy or lease, as is the case with "this donkey" in siman 310, section 1; for with a donkey, the carcass is only standing for sale, and when he encumbered the donkey to him, he encumbered it to him in life and in death. But a house that fell is not standing for sale, but rather to repair it and build it anew, and he did not encumber his house to him in its falling, and he only said to him "this house" when it stands as it is and not when it falls [Nimukei Yosef]. And furthermore, regarding a donkey, when he leased it to take him to a certain place, it is a necessity that he be there, for if not, his entire journey is in vain, and presumably his intention when he leased it was that it should take him there even with its carcass. This is not the case with a house; even though he leased it for a term, nevertheless, whatever he dwelt in it was a benefit to him, and there is no reason to say that his intention was that he should dwell until a certain time even with the ruins of the house and to consume the principal of the lessor. Therefore, he calculates with the lessor the rent that has accrued until the falling and pays him. And if he had already given the lessor more than until that time, the lessor returns the remainder to him. And even if the lessor rebuilt it anew, he can protest against him so that he shall not dwell in it, because it is a different house.

However, there is one who says that this is specifically when it fell entirely, but if the essence of the house exists but it is dangerous to dwell in, such as when the beams or the walls are leaning toward falling and the like, the lessor is obligated to repair it even when he said to him "this house," for that same house exists and it is not relevant to say "this house has gone," and the lessor is obligated to repair it. Our teacher, the Beit Yosef, wrote in section 17: "If he has in his hand advance rent." Thus far his words. And he means when he already received from the lessee rent money for the future as well, he is obligated to repair it, but when he has not yet received it, he can say to him, "Go and rent another apartment." In the Rambam and the Tur this was not mentioned, and also from logic it does not seem correct to distinguish in this, for since he liened himself regarding this house and its name is still upon it, he is obligated to repair it even if he did not advance him rent for the future [Sma]. And it appears that he holds that this is a legal doubt whether even now it is called "this house" because its essence stands, or not, since it is impossible to dwell in it. Therefore, when the money for the future is in the hand of the lessee, he does not have the power to compel the lessor to receive from him more rent money for the future, but when he already received them, the lessor cannot compel the lessee to receive them back from him; for just as "the one who seeks to extract from his fellow bears the burden of proof," so too one who comes to compel his fellow to extract from him bears the burden of proof. And some say that all this is when there is enough in the rent money of the house to repair it, but if it cannot be repaired with this money that the lessee owes until the time he rented, the lessor is not obligated to repair it and spend expenses from his pocket, for the money of the house is included in "this house" and not other money [Netivot HaMishpat]. And even if the lessee says, "I will rent from you for a further duration of time and I will advance you money that will be enough to repair it," he can say, "It is not my will to rent it for more than the time I fixed for you then" [it appears to me].

But if he rented him a house indefinitely and it fell, he is obligated to rebuild it or to give him another house. And even when it is smaller than the house that fell, the renter cannot prevent him, provided that it is called a "house." But that it should be the size of the first one, he cannot compel him, for he only rented him an indefinite house, and this is called a "house." However, as long as the first one has not fallen, he cannot remove him from this one and give him a house smaller than it; and even to remove him to a house more beautiful than it is not within his power as long as it exists and he dwells in it [Taz]. And see what I wrote in section 7 and 32.

And specifically when he said to him "a house" without specification, but if he said to him "a house such as this I am leasing to you," its law is like an unspecified house regarding this: that if it fell, he is obligated to give him another house. However, in this case his power is greater than an unspecified house, for he cannot give him a house smaller than the first house, as for this reason he said "a house such as this," meaning according to its measurements and its form. Therefore, he is obligated to provide him a house according to the measurements of the length and width of this house that he showed him. The lessor cannot say, "My intention was not regarding its measurements, but rather that it should be near the river or the market or the bathhouse like this house that I showed you." And also the lessee cannot compel him to give him such a house that is adjacent to the river or the market or the bathhouse, for presumably when he says "a house such as this," the intention was regarding the measurements and the form and not regarding another matter. Therefore, he provides him such a house in its measurements and its form, even though it is not as beautiful in its building and its decoration as the first. Consequently, if the first was a large house, he shall not make it small; if it was small, he shall not make it large; if it was one room, he shall not make it two; if it was two, he shall not make it one. And he shall not diminish from the windows and the entrances that were in it, nor shall he add to them, except with the consent of both of them. And likewise, when he leases him another house, it must be so according to the details that we have explained.

Our teacher, the Rema, wrote in section 17: If the house burned down, its law is like that of one that collapsed; if the entire city burned down, it is a regional plague, and he deducts from his rent for what he did not dwell in, whether he preceded his rent to him or not. Thus far his words. And it is difficult, for in the case of collapse the law is also thus, that for what he dwelt in he pays and for what he did not dwell in he returns to him, as has been explained; if so, even without the entire city burning, the law is like when the entire city burned, and why does our teacher, the Rema, distinguish between this house burning and the entire city burning? However, from the source of the law it is explained well, for behold its source is from the Teshuvot Maimoni, Mishpatim, and there are two responsa there: one in siman 27 from the Rashba, the author of the Tosafot, and he holds there that even if the house collapsed, the renter is obligated to pay him also the rent for the future because his luck caused it [and so he brought from Rashi, chapter 5 of HaSho'el, however it is not in our Rashi, and the Nimukei Yosef wrote in the name of many Rishonim the opposite, as I have written]. However, when the entire city or most of it burned, which is like a regional plague, he also admits in his responsum there that he must return to the renter for what he did not dwell in if the renter preceded his rent to him, see there. However, when only his house burned, he ruled there that its law is like a collapse, and according to his system, he pays him even for what he did not dwell in, and he disagrees with all the poskim. And there in siman 47 there is a responsum of the Maharam of Rothenburg regarding a renter's house that burned, and he also ruled that its law is like a collapse, except that it is explained there that he holds regarding collapse like most poskim, that for what he dwelt in he must pay and for what he did not dwell in the landlord must return to him, see there. And this is the intent of our teacher, the Rema: "If the house burned down, its law is like that of one that collapsed," meaning, according to the opinion of most poskim that in a collapse, for what he dwelt in he must pay and for what he did not dwell in he must return to him, so too in a case of burning. And for the one who holds that in a collapse he must pay the entire rent, also in a case of burning he must pay the entire rent. However, if the entire city burned—and not specifically all, but rather that there was a great fire, may Hashem save us—even according to this opinion that in a collapse one must pay the entire rent, he admits that in this case he need only pay for what he dwelt in, and if he gave more, the landlord is obligated to return it to him. Therefore, in truth, regarding the law where we also established thus for a collapse as has been explained, and our teachers the authors of the Shulchan Aruch did not bring at all the lone opinion we mentioned, there is no difference at all between his house alone burning and the entire city burning; rather, our teacher, the Rema, distinguishes them because they are distinct in their reasoning, for even according to the one who disagrees regarding collapse, he admits regarding the entire city burning. But as for the law, there is no difference, and so all the poskim and all the great Acharonim agreed that even if only his house burned, he pays him for what he dwelt in even if he did not give it to him yet, and for what he did not dwell in he does not pay him, and even if he preceded his rent to him, he returns it to him, and such is the primary law [and the Sma and the Taz emended his words, but there is no need for this, and as for the law, the Taz also ruled thus, see there; and in vain did the Netivot HaMishpat toil over the words of the Rema and was very pressed, and the matter is clear as I have written].

One who has a house and an upper story above it and rented the upper story to his fellow, and said to him, "This upper story I am renting to you," and it fell, he is not required to give him another, and he pays him the rent according to the time he dwelt in it, as with a house. And if he said to him "an upper story" without specification, he is obligated to give him an upper story; however, if he wishes, he may give him another and is not required to build this specific upper story. But if he said to him, "This upper story which is atop this house I am renting to you," behold, he has subordinated the house to the upper story, for if not so, why did he have to say "which is atop this house"? Therefore, if the upper story was breached, even if the breach is only four tefachim, nevertheless, since he lacks a significant space for the use of one vessel, the lessor is obligated to repair it, and all the more so when the breach is more than four tefachim. And if he did not repair it, the lessee goes down to the house and dwells there with the homeowner, and enters and exits through the entrance of the house until he repairs the upper story for him. And the homeowner cannot say to him, "Use the upper story, and the usage that you lack, use in the house," for the lessee can say to him, "I will not trouble myself to use half below and half above." And therefore, also regarding walking, he cannot compel him to go through the upper story and from there to the house, but rather he walks on the level to the house and from there to the outside, for he has subordinated the house to the upper story. And even if the entire upper story fell, he is obligated to build it as long as the house exists. But if both of them fell, the house and the upper story, he is not required to build him another, since he said to him "which is atop this house," and both of them are gone.

There is one who says that when one says "this upper story which is atop this house" and the upper story fell, and the lessor desires to give him a dwelling in his house and not to build the upper story, the lessee cannot compel him to build it. However, there are those who disagree on this [Tur], for granted that when he does not build it, he moves downstairs, this is only in order to pressure him so that he will build it; but according to the fundamental law, he is obligated to build it, for for this purpose he encumbered the house to the upper story, as as long as the house stands, he is obligated to provide him an upper story. And the proof for this is that if it were not so, we should also say that the owner of the upper story may prevent the homeowner from leasing his house to another, lest his upper story fall and the house will be his and the lessee will not agree to this, and we have not found this in any of the poskim. Rather, it is certainly so that he has no right to dwell in the house itself, unless it is in order to pressure the homeowner, as I have written.

If there were two upper stories one on top of the other and he rented him the upper one, and said to him, "This upper story that is on top of this house I am renting to you," and the upper story fell and the lessor does not want to rebuild it, the lessee goes down and dwells in the lower upper story, but not in the house, because he can say, "I only subordinated to you the lower upper story," for it also has the name "upper story house," and the burden of proof is on the claimant. Therefore, if both upper stories fell, even though the house remains standing, he does not need to rebuild it anymore, as he can say, "I did not subordinate the house to you." And if he rented him the lower upper story and said to him, "This upper story that is on top of this house I am renting to you," and the lower one fell and the upper one remains standing, it is a matter of doubt for us: perhaps he cannot compel him to rebuild it, for the lessor says to him, "Go and dwell in the first upper story," for even though I rented you the lower one and subordinated the house to you, nevertheless the upper one is also included in "this upper story that is on top of this house," and what will you lose? Or, it is possible that the lessee can say to him, "It is difficult for me to ascend to the height of the second one," and therefore I will use your house until you rebuild the lower one for me. Therefore, since it is a legal doubt, the lessee shall not dwell in the house ab initio, but if he went down and dwelt there, they do not remove him from there, and he dwells there against the will of the homeowner. Also, the lessee cannot compel him to rebuild the upper story, for since this is a legal doubt, each one remains in his established status [see Tosafot Bava Metzia 117a, s.v. ipachit].

The general principle is: anything that suspends one thing upon another, as long as one of them exists, he is obligated to maintain the second thing for him, such as in the case of this upper story which is atop this house, as has been explained. And the sages, of blessed memory, said: It happened that one said to his fellow, "I am leasing to you this grapevine which is suspended upon this peach tree," and the peach tree was uprooted from its place. The case came before the sages and they said to him: You are obligated to maintain the peach tree in its place as long as the grapevine exists, and so too in any similar case. Therefore, also regarding this upper story which is atop this house, if the house was displaced from its location, he is obligated to maintain it in its place as long as the upper story exists, for they are liened to one another. And some say that this is specifically in a case such as this, where the peach tree still exists in the world but was only uprooted from its place; however, if it was cut down, he is not obligated to provide him another peach tree, for the primary point is that he suspended the grapevine upon the peach tree, such that as long as the peach tree exists, he is obligated to maintain the grapevine for him. But the suspension of the peach tree upon the grapevine is only as long as it exists in the world; but when it is no longer in the world, it is no longer "this peach tree." Therefore, also regarding the upper story that was explained, if the house beneath the upper story fell completely and the upper story remains, he does not need to provide him another house.

One who leases a house to his fellow and the house is collapsed, the lessor is obligated to build it immediately, for presumably he leased it to him with the intent to build it. The lessor cannot say, "I leased it to you as it is in its ruin, and you shall toil in its construction," for if so, he should have specified; and since he did not specify, presumably his intention was that he would build it immediately. He also cannot extend the time, for if so, he should have specified.