Siman 317

We maintain that rent is not payable except at the end, unless they explicitly stipulated how the payments shall be, in which case they act according to their stipulation. They must stipulate at the time of the rental; afterwards it is not effective except through a kinyan. He must pay him on the last day of the term in an ordinary case where they did not stipulate, and in beit din it is not collected until the following day [Nimukei Yosef, chapter HaSho'el]. Therefore, one who rents a dwelling in an ordinary case without a set time must pay him on the thirtieth day, for an ordinary rental is thirty days, as I wrote in siman 312, section 12. And if he rented it to him during the rainy season, since he cannot evict him until Pesach as I wrote there, he does not need to pay him before Pesach [it appears to me]. If he rented it to him for a year, he pays on the last day of the year; and if he rented for five years, he pays him on the last day of the five years. All this is when they did not stipulate, but when they have stipulated, any stipulation in monetary matters is sustained.

A renter who says, "I have given the rent for the house that I owed," and the landlord says, "I have not yet received it"—if he claimed it from him within the period of the rental, or in an unspecified rental when he claimed it within thirty days, the renter must provide proof, as in the case of a loan in siman 78. And even though regarding an unspecified loan, which is thirty days, we do not say the presumption is "a person does not pay within his time" as is written there, one must distinguish between a loan and a rental [Shach]. And if he did not provide proof, he must pay, and he has the ability to impose an acceptance upon whoever took from him according to the law. And afterwards, when he has paid him, he can claim against him regarding the money he took from him for nothing and have him swear a hesat oath. And one may not have him swear before the payment as in a loan, as is written there, for in a loan there are nevertheless those who pay before their time, but in a rental it is not the way at all to pay before its time [Sma]. And some say there is no distinction between a loan and a rental, and in truth, in a loan as well he cannot have him swear before payment [Shach].

And if the lessor claimed it from him after the time, or on the day the time was completed, it is upon the lessor to bring proof, or the lessee shall swear that he already gave him his rent and be exempt. It is not relevant here to say the land remains in the possession of its owners, since the doubt is not over the dwelling but rather over the payment. And so too if they stipulated beforehand how he shall pay, such as if he rented from him on the condition that he pay him every month or every year: if he claimed it from him within the month or within the year, it is upon the lessee to bring proof; if he claimed it from him after the month and the year, even on the final day of the month and the year, it is upon the lessor to bring proof.

And there is no difference in all this between whether he hired him with a document or without a document, and likewise between whether he hired him with witnesses or hired him without witnesses. And even though regarding a loan with a document one is not believed to say "I paid" even after its time, as written in siman 82, a loan is different because he can say to him: "What is your document doing in my hand?" But a document of rental is not written for collection, but rather so that the renter does not return and say "I bought it from you." And even if payment of the rent is mentioned in the document, and it is also written therein "and we performed a kinyan from him regarding all that is written and specified above," the primary kinyan is not regarding the rental money but rather regarding the essence of the rental. And this is not like a promissory note unless trustworthiness is written in it, or if there is a document regarding the rental money alone apart from the rental itself, for then its law is like a promissory note [Sma]. And likewise, even when there is neither a document nor witnesses here, nevertheless, within its time he is not believed to say "I paid" with a migo, as written in siman 78. Nevertheless, regarding rental there is no migo, for he cannot say that the time has already passed, as he would lose out since he would no longer have the ability to dwell there for more time. And likewise, he has no migo of "I stipulated a lower rent with him than what the lessor says," for his desire is to exempt himself from the entire rent, and therefore he says "I paid" [Netivot HaMishpat]. And even if he says "I paid a portion," where in such a case he would have a migo when there are no witnesses, nevertheless, even in this there is no migo, for in such a case the lessor can evict him from the house when there is a denial between them regarding the stipulation, as will be explained nearby, and therefore he has no migo even in this [ibid.]. And nevertheless, there are those who disagree, holding that without witnesses he is believed to say "I paid" even within its time [the Gra], and so it is implied from the wording of the Rambam in chapter 7.

One who leases a house to his fellow for ten years and there is no date in the document, or there is a date but it is known that he did not enter it at the time written in the document, and the lessee says "I am still within the time" and the lessor says "the years of the lease have already passed and you have dwelt for ten years," it is upon the lessee to bring proof. And if he did not bring proof, the lessor shall swear a shevuat hesset and remove him, for in any claim between a lessee and a lessor, the land remains in the possession of its owner, and it is upon the lessee to bring proof, except for a claim of payment that has been explained, because it is like a mere monetary claim. But in other claims between them, even in a claim of the fixed price, where the lessor says "you fixed ten gold pieces per month with me for the house" and the lessee says "less," it is upon the lessee to bring proof, since the fixing of the price is regarding the essence of the acquisition of the house. Therefore, even when he has already dwelt in it, it is upon the lessee to bring proof, as in the case of an intercalated month in siman 312. And all the more so if the lessee says "I leased from you" and the lessor says "I did not lease to you," that it is upon the lessee to bring proof [Sma]. And it appears to me that this is specifically when the lessee has not yet entered into the house, but when he has entered and the lessor says "you entered by robbery," he is not believed, for we do not presume people to be robbers; and see in siman 133, and it requires further study for the law.

However, some say that if it is after the time of the rental, where he could say "I paid" or "I never rented," and a claim fell between the renter and the landlord, even though the land remains in the possession of its owner, the renter is believed with a migo. And the same applies when the renter has a migo that "it is purchased in my hand" [Shach], because the primary claim is over the money. And since he has a migo, he is believed with an oath. And it is not similar to the intercalated month, for there the doubt is in the law, whether we seize the first phrasing or the last phrasing; but when the doubt is through their claims, and the claims between them are not whether to dwell in it or not, but rather whether to pay or not to pay, or to pay less or more, since the renter has a migo, he is believed. And some say that even the first opinion holds so, that with a migo he is believed [ibid.], and there is no dispute in this at all. And likewise, if the owners say, "I rented it to you and you owe me rental fees," and the one who dwelt in it says, "You let me enter for free," he is believed regarding the past and swears and is exempt; but regarding the future, he is not believed without proof. However, that he should be believed in another claim with a migo of this claim that "you let me enter for free," he is not believed, for this is not a good migo as it is not common at all [it appears to me].

A deed of rental or a deed of mashkanta in which it is written that he rented or gave as a mashkanta for years, and it is not written for how many years, and the renter or the lender says for three years and the landowner says for two years, it is obvious that the land remains in the chazakah of its owner, and we do not allow him to consume the fruits of the third year, and the landowner takes a shevuat hesset. And if he already consumed the fruits of the third year, the sages said [Bava Metzia 110] that even though according to the law land remains in the chazakah of its owner when there are witnesses to the fruits he consumed and he has no migo [ibid.], nevertheless, since it is a matter that will presumably be clarified by witnesses, we do not trouble the beit din now and we wait until the matter is clarified and the landowner brings proof. Therefore, there is one who says that if according to the assessment of the beit din it will not be possible to clarify through this one or through that one, we remove it from his hand; and even if he consumed the three years before he was summoned to beit din, for this is similar to the doubt regarding an intercalated month [ibid.], since the doubt is in the interpretation of the deed. And even in a case where it is possible to clarify, where we wait until it is clarified, this is only when the beginning of his consumption was with permission, as in this case where he admits to him regarding two years; but when they disagree over the core of the seizure, such that according to the words of the lessor he does not admit to him regarding his core seizure, we do not wait for him until it is clarified [ibid.].

If the renter or the mortgagee consumed the produce for three years and suppressed the document, and said, "I have the rights to the produce for five years because you rented it to me or mortgaged it to me for this duration," while the landowner says, "For three years," and the landowner said to him, "Bring your document," and he said, "The document was lost," the renter or the lender is believed with a migo that he could have said, "It is purchased in my hand," for behold, he consumed it for the years of chazakah. And this is not a migo to extract, because he has already merited the land according to his claim for five years and is like a muchzak [Sma]. And this is specifically when there are no witnesses that it is rented or mortgaged in his hand and also the landowner did not make a macha'ah; but when there are witnesses or he made a macha'ah, he is not believed, for he has no migo, and the landowner takes a shevuat hesset and they act according to his words. And from this is proof to what I wrote in section 6, that he is believed with a migo. And according to the opinion in section 5, one must say that a migo of "purchased" is different, for it is not relevant to say that "it stands in the chazakah of its owners" since he has a migo to say that he is the owner of the land. And see in siman 150.