Siman 315

Just as land is acquired through money, a deed, and chazakah, so too the leasing of land is acquired through money, a deed, and chazakah. We have already explained at the beginning of siman 312 that the kinyan takes effect even for a later time; however, this applies only to a kinyan of money or a deed, but chazakah is not effective except upon the arrival of the time. There was an incident involving a woman who leased a house from Reuven during the winter months to dwell in it from Pesach until Shavuot, and he received her into his house as an act of kindness before Purim without payment, and before Pesach he retracted. They ruled that he is able to retract, for chazakah is not effective except after the completion of an act that is fit for establishing chazakah immediately. Therefore, the chazakah of her entering before Purim is not effective, for her dwelling there then was not part of the leasing [Sma]. And regarding the leasing of movables, a kinyan is required just as in the sale of movables. It is possible that money also acquires in the leasing of movables, for regarding leasing, the reason "lest he say to him: your merchandise was burned" is not applicable, since they belong to him [see Rashi, Bava Kamma 79a].

And just as there is no ona'ah for the sale of lands, as has been written in siman 227, so too there is no ona'ah for the leasing of land, for a lease for a day is a sale regarding this matter. And there it was explained that at half the value there is ona'ah, and in the leasing of movables there is ona'ah of a sixth, just as in their sale.

Just as a person may stipulate any condition he desires in a sale, so too may he stipulate in a rental, and there is no need for a separate kinyan for this; rather, when he takes possession of the rental itself, he must fulfill the condition. And anyone who is not eligible to sell, such as a deaf-mute, an imbecile, or a minor and those similar to them, is not eligible to rent or to lease out. The Rambam wrote in chapter 7 of Rental: unless he possesses only the fruits in that land, for such a person leases out but does not sell. Thus far his words. And some say that his intention is that since he only possesses the fruits in the land, he cannot sell them because they are a thing that has not yet come into the world, but by way of rental it is effective—that is, he removes himself from the fruits, and removal is effective for a thing that has not yet come into the world, as written in siman 209. Therefore, the rental is effective in that this one removes himself and the other enters in his place by virtue of the rental payment he gives him and stands in his stead. But this does not seem correct to me, for there, when he removes himself from the fruits, they remain in the hand of the one who owns the body of the land, such as one who has a lien on his fellow and removes his lien, or a husband who removes himself from the fruits of his wife's nichsei melog. But here, granted that he can remove himself, nevertheless, by what means shall the other acquire the fruits since the body of the land is not his? And some say that regarding a renter, it is effective even for a thing that has not yet come into the world, because anyone who rents a field does so for the fruits, and the fruits are not yet in existence, but rather every lessor subjects his person to this. This too is not clear, for certainly every renter rents a field for its fruits, and in such a case it is effective even in a sale, as written there. And in truth, one who does not possess the body of the land but only the fruits, from where do we know that he can lease them out when the fruits are not in existence? And even though one who writes over his properties "from today and after death" can even sell the fruits, as written in siman 257, it is different there, since he reserved the fruits for himself, and a person does not reserve a thing that has not yet come into the world as written in siman 209, but rather because for himself he reserves with a generous eye and reserves the place of the fruits as written there, and therefore he can also sell them. [And as for what the Netivot HaMishpat brought as proof from one who leases out a donkey even if he does not own a donkey, I do not know from where he knows this].

And there are further interpretations whose words were rejected; however, the intention of the Rambam is according to its plain meaning. For behold, "sale" is the term used when one sells the essence, and "rental" is the term used when one rents to consume the produce. Regarding this, he said that anything that is not subject to sale is not subject to rental, except for a matter in which the person possesses nothing in the land but produce, for in this case the essence of the land is not subject to sale, yet the produce is subject to rental. And the truth is that he can also sell the produce, but he spoke regarding the essence of the land [Ktzot HaChoshen].

Nevertheless, if a person is able to lease a thing that has not yet come into the world, such as one who sold his field or his house and stipulated that he would consume the produce or dwell in the house for such and such years—and a condition is within one's power to stipulate even regarding a thing that has not yet come into the world, as written there—it requires further investigation as a matter of law whether this seller can lease the produce and the dwelling. For he cannot lease a field for its produce or a house for dwelling, as he possesses nothing in the house or the field. And it is obvious that a thing which is not in his possession can be leased, such as one who leases a donkey and the donkey is not in his possession, for example, if it is leased to others, as written at the beginning of siman 312. The reason is that when one leases, the essential body remains with the lessor; and that which the sages, of blessed memory, said, "a lease for a day is a sale," this is only regarding the matter that he may use it all the days of the lease, and not that the body belongs to him [Nemukei Yosef, end of the chapter "HaZahav"]. But one who leases a donkey or a house and has no donkey or house at all, which is a thing that has not yet come into the world, there is doubt whether he can lease it or not. And from that which the sages, of blessed memory, said, that one who leases an unspecified donkey and it dies, he is obligated to provide him another donkey, and similarly regarding an unspecified house when it falls, that he is obligated to provide him another house, there is no proof that one can lease a thing that has not yet come into the world. For this is because he has already taken possession of what he leased, and the lessor is liened to fulfill his condition so that the lessee may arrive with his donkey at the place for which he leased it and dwell in his house until the time for which he leased it. But initially, if he has no donkey or house at all, it appears as a matter of law that just as it is not valid in a sale, so too it is not valid in a lease. And there is also no proof from the fact that a lessor is obligated to do in the house everything that is the work of a craftsman, for this is also because once he performed a kinyan or chazakah, he is liened to do for him everything necessary for the house. And there are some of the great later authorities who hold that he can lease, but it does not appear so, and it requires further investigation [and the Taz and the Netivot Mishpat take it as obvious because of the words of the Rambam, and since his words are according to their plain meaning, there is no further proof].

All doubts that arise between the renter and the lessor regarding the essence of the house, such as one who rents a house from his fellow and claims that he rented it on the condition that he may bring in other residents with him and the lessor denies it, the lessor shall swear that he did not so stipulate, for land remains in the possession of its owner, and he swears a shevuat hesset and the renter must act according to his words. And the same law applies to all claims between them, for it is a great principle that land remains in the possession of its owners, as I wrote in siman 312.

It has already been explained that any condition a person stipulates in a hiring, his condition is valid. Not only this, but even in a place where the hiring does not require a kinyan, such as when one hires a person for his work—and in the hiring of a worker a kinyan is not required—the condition also does not require a kinyan. Not only this, but even a condition that one stipulates with another on behalf of the worker, the other is liable if he took it upon himself at the time he hired the worker, for it is like a guarantor at the time of the giving of the money [Netivot HaMishpat]. And all the more so if Reuven hired a worker from Shimon, that Shimon is liable for every condition he stipulated. And there was a case involving Reuven who hired a youth from Shimon to serve him, and Shimon said to Reuven to rely on him to pay him for everything the youth would lose in his house while being with him. And the Rosh ruled that Shimon is liable for all the losses even though there was no kinyan in the matter, because every condition of hiring does not require a kinyan when the hiring itself does not require a kinyan, as with a worker and a hired hand. And all the more so in a matter that requires a kinyan, that every condition stipulated at the time of the act, the condition is valid [as mentioned above in the explanation of the Tur and the Shulchan Aruch, section 4; and it must be that Reuven hired a youth from Shimon, and so it is in the Responsa of the Rosh, and so wrote the Ketzot HaChoshen; and nevertheless even another is liable because of being a guarantor as the Netivot HaMishpat wrote, and the explanation is as I wrote, that it does not require a kinyan at all, and so it appears from the Gra; and that which the Sma wrote, that it does not require a new kinyan, is not exact, and examine this].