Siman 316

From that which our sages, of blessed memory, said regarding one who rents a ship and unloads it halfway through the journey—that the renter may rent it to others, as is written in siman 311—the Rambam wrote in chapter 5: From here I say that one who rents a house to his fellow for a fixed time, and the renter wished to rent the house to another until the end of his term, he may rent it to others if the members of the household are equal to the number of his own household. However, if they were four, he may not rent it to five. For the sages did not say "a renter is not permitted to rent out" except regarding movables, for he says to him: "It is not my will that my deposit be in the hand of another." But regarding land, or a ship where its owner is with it, he does not say so. And so I say, if the owner of the house said to the renter: "Why should you trouble yourself to rent my house to others? If you do not wish to remain in it, leave and vacate it, and you are exempt from its rent," he cannot rent it to another, for this falls under "do not withhold good from its owners"; rather than renting it to another, leave my house to me. And there is one who instructed that he cannot rent it to another at all, and he must pay his rent until the end of his term, but it does not appear to me that this is a true law. Thus far his words.

The Ra'avad wrote that the reason some rule thus is because there are people who destroy the house by their dwelling. Thus far his words. And behold, in this the Rambam certainly also admits that if it is known that this man who wishes to rent it is a destroyer of dwellings, or that he is a violent man, or a quarrelsome person, or does not conduct himself with cleanliness and the like, certainly the lessor may protest against him from renting to this person. However, the lessor is not believed to say that he is so without evidence from the neighbors of this man. And likewise, he cannot rent it to an enemy of the lessor, as is written in siman 312, section 17.

However, all of this is specifically when the lessor does not dwell together with the lessee, but if he dwells with him, the lessee cannot lease to another, for not every person is able to tolerate dwelling together, because the temperaments of people differ from one another. And so wrote the Tur in the name of the Rosh, of blessed memory. And it is not similar to a ship, where even if the owner of the ship is with him he cannot protest against him, only that he has a grievance, as written in siman 311, for in a ship there is no permanent dwelling and there are no household members there. But in a dwelling where both have household members and they could come to a dispute, the lessor can say: "The household members of this one to whom you wish to lease, I cannot tolerate," even though he is unable to show revealed reasons for this. And it is possible that this was the intention of the Ra'avad and they do not disagree at all in the law; and we shall say that the Rambam is dealing with a case where the lessor does not dwell with him, and that which he wrote "for its owners are with it," his intention is that he supervises it at all times, but the lessee can hide away movable objects [Taz]. And such is the primary law, and in section 9 this will be further explained [and so wrote the Sma; and the Rema in Darkei Moshe, who wrote that it is a dispute, wrote that the opinion of the Tur is that even the Rambam admits to this, see there].

Our teacher, the Rema, wrote in siman 363, section 10: One who rents a house from his fellow and went back and rented it to others for more than he rented it for—if he had permission to rent it to others in the manner that was explained above in siman 316, the profit is his; and if he did not have permission to rent it, the profit belongs to the owner. Thus far his words. And we learned from this that regarding that which the Rambam wrote, that if the owner said to the renter, "If you do not wish to remain in it, leave and vacate it," etc.—if there is someone who wants to give the renter more than what he rented it for, the lessor is obligated to give him this amount as well [Acharonim]. Furthermore, one of the great authorities wrote: When can the lessor say this to him? Specifically before the renter rented it to another, or even if he rented it with a kinyan but the second renter has not yet entered and it is common for him to rent another house. But if the second renter already entered, or even if he did not enter but another house like it is not common for him to rent and he performed a kinyan with the first renter, the lessor cannot say this to him. For since the reason is only because of "do not withhold good from its rightful recipients," we do not say this except where there is no loss to others, and here, behold, there is a loss to the second [Radbaz].

Our teacher, the Rema, wrote: If the renter wishes to leave the house and leave it thus without inhabitants, and wishes to pay the landlord, the landlord may rent it to others, for "a house is better when inhabited" and "desolation smites the gate." Thus far his words. And it implies explicitly that the landlord cannot compel the renter to specifically dwell in it or place another in his stead with the claim that "desolation smites the gate," because this reason is not so strong that it should be in his power to compel him to this. However, when he leaves in the winter in our lands, where it is necessary to heat the stoves of the winter-house so that the house is not damaged, and the renter was dwelling there with his own wood, it is obvious that the landlord can protest against him leaving it vacant, or he must leave wood to heat it [so it appears to me]. And it is a simple matter that if the landlord rents it to another, he deducts for the renter from what he must give until the end of his rental period everything that he receives from the second renter. And there is one who says that if the landlord already received from the first renter all his rent until the end of his term, he does not return to him what he receives from the second [Sma in the name of the Mordechai]. And there is no reason for this law; why should the landlord receive rent twice? And our teacher, the Beit Yosef, already brought these words in his great work at the end of siman 312 and rejected them [and also the Ketzot HaChoshen wondered at this]. Therefore, the main principle is as I have written [and without this his words are astonishing, and in the Mordechai there it is a different matter, as he says there that the renter does not have the power to rent it to another without the will of the landlord [either because he holds not like the Rambam or because the second renter was not equal to the first, and there is no contradiction to what is written in the sixth chapter of Bava Metzia, for there the heirs are under duress since he died, see there, even if he does not hold like the Rambam, and the Chiddushei Anshei Shem pressed himself for naught in this]. And if the landlord rents to another, he deducts for him, and even if he finds someone to rent to, he deducts for him. And what he wrote, "But here, where Reuven holds the rent in his hand etc. Levi cannot say 'return it to me and rent your house to another' etc." means that since it will presumably happen that he finds someone to rent to, he cannot say so until he actually rents it and returns the remainder to him. And for this reason he concludes there that the renter also cannot compel him not to rent it at all; see there and examine carefully].

One who gave his house to another or rented it out and reserved the power for himself that whenever he desires he may dwell with the recipient of the gift or the renter of the house, he may sell his power to another, provided that the members of the household are not more numerous than his own. And even though it was explained in section 3 that regarding those who dwell together he cannot rent to another, that applies to a renter; but when he reserves for himself, he reserves with a generous eye, such that he should have the power also to rent to another in his place [Sma]. And for this reason, some say that he may rent even to one whose household members are more numerous than his own, unless he explicitly stated beforehand for how many souls he reserved for himself [Taz]. And one should not say, behold, dwelling is a thing that lacks substance, as written in siman 212, and how can he sell his right to another, for behold, a sale does not take hold on a thing that lacks substance, as written there? For it can be said that for himself he also reserved the place of the dwelling and he can sell it to another, as written in siman 315 section 3, or he reserved his house for dwelling.

And there are those who distinguish and hold that specifically when he reserved for himself a defined portion, such as half the house or a third of it or a certain room, then he may sell it to another; but if he reserved an undefined portion, such as if he stipulated with him that when he needs it for himself he shall have the ability to remove the lessee from the house, or if he wishes he shall dwell with the lessee, he cannot sell or lease his right to another, for it is not grasped by a sale and is a mere condition, and a condition applies to everything as written in siman 209, but in a sale it is not so since he did not reserve a defined location [see Taz].

Our teacher, the Rema, wrote: One who gives another a dwelling in his house, and the recipient does not need that dwelling, it appears to me that he may rent it or sell it to another whose household members are not more numerous than his own, for the power of the recipient of a gift is no less than the power of one who reserves for himself, as a giver gives with a generous eye. Thus far his words. The Acharonim rejected his words, for certainly in every place the power of a recipient of a gift is less than one who reserves for himself, regarding one who sells his field and reserves two trees, that he has land, as written in siman 216. And so too, one who transfers to another a dwelling in his house, it is not effective because it is a thing that has no substance, whereas if he reserves for himself it is effective. And so too, if he reserves the fruit of a palm tree for himself it is effective, as written there [Sma]. Furthermore, it must be speaking of a case where he did not reserve for himself a specific thing, for if he reserved a specific thing, why did he require that his household members not be more numerous? For in his specific portion he may do whatever he wishes, and in such a case this law of giving to another applies. Furthermore, he only gave him a dwelling, and a dwelling is a thing that is not specific, and if so, he cannot sell according to what has been explained [Taz]. According to this, one must raise a further difficulty: if so, the gift is nothing, for a dwelling is a thing that has no substance. It is understandable when one reserves for himself in the previous law, where it can be said that he reserved with the language of a condition, and a condition is effective for anything; but in a gift, the kinyan is nothing. Perforce, one must say that he gave him a house for a dwelling, such that the kinyan takes effect, and consequently he can sell it to another even according to the previous opinion, as it is like a specific thing, for the house is specific. Nevertheless, he cannot sell to one whose household members are more numerous, for he did not specify for him half a house, but rather a house for a dwelling for his household members, and consequently he does not have the capacity for more than his household members. And that which he said, that the power of the recipient of a gift is no less than the power of one who reserves for himself, his intention was that the power of the recipient of a gift when he explicitly gave him a house for a dwelling is no less than the power of one who reserves for himself a dwelling without specification, which is effective because we say he reserved the place of the dwelling and can sell it. Even the opinion in section 7 would agree to this, for only when he reserved for himself with the language of a condition, when he said "when I wish," as written there, and a condition applies to everything, but it does not take hold in a sale. But when he reserves absolutely, perforce he reserved the place of the dwelling, for a reservation does not take effect on a thing that has no substance or a thing that has not yet come into the world, as written in siman 209; only when one reserves for himself do we say that he also reserved the place of the dwelling, and therefore he can sell. If so, our teacher, the Rema, spoke well that the power of the recipient of a gift when he explicitly gave him a house for a dwelling is no less than the power of one who reserves for himself without specification, where we say he also reserved the place. And if it is because we might say that specifically to him himself he gave a house for a dwelling, but that he should sell to another he did not give a house for a dwelling—to this he says that a giver gives with a generous eye, for there are places where the power of the recipient is greater than the power of the giver, as in siman 214 regarding a path to a pit or a cistern. All the more so regarding a thing that he gave explicitly, we do not say that he did not give him this such that it would be in his power to sell [and so it appears in Darkei Moshe, see there, and the Netivot HaMishpat].

Our teacher, the Beit Yosef, wrote: Two who rented a house in partnership to dwell in it together, one of the partners cannot seat another in his place, even if he has fewer dwellers than him, for he can say, "You I can accept, but another I cannot accept." Thus far his words. And we have already explained this in section 3. And there are those who say that this law only applies to a renter or two who rented, but two who have a house in partnership and dwell in it, one of the partners can rent to whomever he wishes, and the second cannot protest against him; for specifically a renter is not permitted to do something that is not pleasing to the mind of the lessor in this, for with that which belongs to his fellow he has no power to do anything against his will, and the essence of the house belongs to the lessor. And just as he cannot act against the lessor, so too with two who rented, one cannot act against the second, for every renter has the right of the lessor. But when the house is theirs, behold, each one can do with his own what he wants as long as he does not cause actual damage [Netivot HaMishpat], and these are words of reason. And regarding two who rented, if one can compel his fellow to divide, there are those who say they cannot since the house is not theirs, and there are those who disagree, and it was explained in siman 171.

An incident occurred involving Reuven, who mortgaged his house to Shimon for a set time, and Shimon dwells in the house and deducts from him every year for the dwelling. At the time of the loan, Shimon stipulated that when the time for payment arrives and Reuven does not pay him, he shall have the power to mortgage, or to rent, or to bring into it whomever he wishes. The Rashba, of blessed memory, ruled that he has the power to bring in, and to rent, and to mortgage even to one whose household members are more numerous than his own. The reason is that even without the stipulation, and even within the time, he certainly has the power to rent to whomever he wishes if his household members are not more numerous than his own, as is the law regarding a renter in this siman, for a lender is no worse than a renter. What, then, does the stipulation accomplish? Rather, it must be explained that the benefit of the stipulation is that he may rent even to one whose household members are more numerous than his own, and even if the borrower died and left minor children whom Shimon cannot sue, nevertheless, this right of his which is in his hand is not expropriated from him, and he may, after the time has arrived, rent even to those more numerous than his own [Sma].

A renter whose landlord said to him during his term, "I hereby waive the rent for you until the end of the term, so leave the house," and the renter also consented to this and they concluded with speech without a kinyan—this is nothing, and each one may retract. For since the renter has taken possession of the house, he cannot hand it over to the landlord during his term with words alone, but rather with a kinyan that conveys the house to the landlord. The law of rental is like a sale regarding this matter; just as a buyer cannot hand back his purchase to the seller without a kinyan, so too regarding rental [Ketzot HaChoshen, and so it is in Rivash siman 510, and Mishneh LaMelech chapter 2 of Hilkhot Sekhirut, and so it appears in Maharit siman 118]. Consequently, regarding the rent that he waived for him until now, even though a waiver does not require a kinyan, nevertheless, if they retract regarding the primary dwelling, he must also pay him the rent for until now, for he only waived it for him on the condition that he leave the house, and it is like a waiver made in error [it appears to me].