Siman 321

Even though it has been explained that regarding a lessee there is no distinction between whether his field produced much or whether it produced nothing at all, for he gives him his lease-payment, nevertheless our sages of blessed memory said [Bava Metzia 103b] that in a matter that is a regional plague—where all the fields did not produce fruit, such as if locusts or grasshoppers fell and ate all the fields—he deducts from his lease-payment, as will be explained in siman 322. For in such a case, he cannot say to the lessee, "your luck caused it," since it is a Divine decree upon all field owners, and the owner of this field must also suffer the loss. But if a situation arose where more labor was increased for the lessee, and if there had been much labor it would have produced fruit, therefore if he did not labor, he shall suffer the entire loss and not the field owner, for he should have labored. And so too in a sharecropping arrangement, he shall pay the field owner his portion according to what he caused him to lose, according to the assessment of experts. But in a regional plague regarding a sharecropping arrangement, he does not deduct anything for the receiver, for deduction is not relevant in this case, since they divide according to their agreement from whatever is found. This is the opinion of many of our teachers, and our teacher, the Rema, ruled accordingly. However, the opinion of the Tur, and so it is implied from the Rambam in chapter 8 of Sekhirut, is to distinguish between a regional plague that occurred after the growth of the produce, such as if a grasshopper ate it—in which case they divide what is found—and a regional plague that occurred before the growth of the produce, such as if the great river dried up as will be explained, and this field cannot grow without drawing water, and this receiver labored and brought water from other rivers. He would have been able to withhold himself from such great labor, for he did not receive it on this understanding; therefore, if he did so, the owner deducts for him from his own portion according to the labor he had [Sma]. And there is one who says that they do not disagree at all, and there is no distinction between whether the plague occurred before or after this, and if the receiver did nothing extra, deduction is not relevant and they divide all that is found according to the portions. But if he did something beyond his obligation, such as bringing water from distant rivers, all agree that the owner adds to him and deducts from his own portion. This is the intent of the Tur, and our teacher, the Rema, is dealing with a case where he did nothing extra [Taz], and such is the primary rule in law.

Therefore, one who leases or contracts a field from his fellow, and it is an irrigated field that is not satisfied with rainwater and requires watering, and the spring from which they water this irrigated field dried up, but the large river from which this spring is drawn did not cease, he may not deduct from his lease, for he should have exerted effort and brought water from the river. And also regarding a contractor, if he did not bring water from the river, he must pay the owner of the field his portion according to what it would have produced if he had brought water from the river. And similarly, if in this field there was a good tree for which the field was called "the house of the tree," and it is known that because of the tree the lessee entered into it because from the tree he takes a portion without exertion [Rashi], even though the tree was cut down, he may not deduct from his lease, as this is not a regional plague. And regarding a contractor, a deduction is not relevant in this case, for behold, both of them lose out on the fruit of the tree. And regarding a lessee, whatever the owner needs to take from the produce, the lessee shall buy produce for him from the market, for his own luck caused it. And similarly, if it was a field of trees and many trees were cut down, nevertheless he may not deduct from his lease [the Rambam's commentary on the Mishnah 103b], and even if there did not remain a planting of ten for a beit se'ah [Tur].

But if it is a regional plague, such as if the great river dried up so that the majority of the field owners of that valley [Rashi] or that city [the Rambam] were afflicted, he deducts for him from his lease. However, regarding a sharecropping arrangement, deduction is not applicable, for they divide what is found according to their agreement. Nevertheless, if this person exerted himself and brought water from a distant river to irrigate it, which was not incumbent upon him at all, the field owner adds for him according to the assessment of the experts what is commensurate for his exertion, as was written in section 1. And so too regarding a tree and a field of trees, if the majority of the trees of the valley or the city were cut down by windstorms or did not grow at all, he deducts for him from his lease, for this is a regional plague.

Our Sages, of blessed memory, said that even though when it is not a "plague of the province" he does not deduct for him from his lease-payment, nevertheless, if at the time he leased it to him he revealed his intent that the leasing is based on them being as they are now, even though there was no explicit condition in the matter, he deducts for him from his lease-payment. For example, if he was standing inside the field and said to him, "This irrigated field I am leasing to you," or "This orchard field I am leasing to you," and the spring dried up or the tree was cut down, he deducts for him from his lease-payment. For behold, he is standing inside it, and why did he need to say "this"? Rather, this is like one who says, "As it is now, I am leasing to you." And the same law applies even if he did not stand inside it but outside of it and said, "This irrigated field I am leasing to you"; since he did not say "this field" and was precise to say "this irrigated field," it implies as it is now. And similarly, if he stands inside it and said to him, "The irrigated field I am leasing to you," even though he did not say "this," since he stands inside it and mentioned "irrigated field," it constitutes a specific insistence that it be specifically an irrigated field as it is now [Sma]. But when he did not stand inside it and did not say "this," but rather "An irrigated field" or "An orchard field I am leasing to you," and the spring dried up or the tree was cut down, he does not deduct for him, for that which he said to him, "irrigated field" and "orchard field," is merely a name, for so it is called; for there is no language in this that indicates a specific insistence to say "as it is now." And this is specifically when he said to him, "The irrigated field that is in such-and-such a place," for if not so, he would give him another irrigated field, as in the case of an unspecified donkey in siman 310; and see what I wrote in siman 218.

And some say that this which we said—that when he said "this" or was standing within it and the trees were cut down, he deducts for him—this is specifically when there does not remain a planting of ten per beit seah, for the name "orchard" has been nullified from it; and similarly in an irrigated field when the spring dried up entirely. But if there remained a planting of ten per beit seah, or if the spring did not dry up completely, he does not deduct for him from his lease, for the name "irrigated field" and "orchard" still remain upon them. And similarly, some say that this which we said—that when he did not say "this" and did not stand within it, even though he mentioned "an irrigated field," he does not deduct for him—this is specifically when the owner of the field said this language to the lessee. And for this we say that even though he mentioned "an irrigated field," since the concern is with the lessee and not the owner of the field, we say that this fact that he leased "an irrigated field" is merely a name. But if the lessee said to the owner of the field, "An irrigated field I am leasing from you," he deducts for him even though they did not stand within it and he also did not say "this," for since the matter affects him, he presumably said so with precision. And so ruled our teacher, the Rema.

An incident occurred involving a certain duke in Italy who had in his city shops designated for loans, and anyone who held a hazakah in one of his shops conducted the business of lending there. The duke appointed one of his judges to assist the shop owners in collecting their debts in his courts. Reuven leased his shop's hazakah to Shimon for several years for a fixed rent each year, and Shimon conducted the business of loans in his shop. Afterward, the prince decreed that his judge should not adjudicate if the lenders gave to the borrowers without a pledge, and through this, the entire business was ruined. Shimon remained in the shop for nearly a year after the decree, and Shimon wanted to cancel the lease he had rented from Reuven for the future, and also regarding the past time that he occupied it during the decree, that Reuven should deduct from his rent. His claim was that this is like a makat medinah, since the duke decreed against all his shop owners. The great scholars of Italy agreed that the law is with Shimon:

And one unique individual from the great men of the land disagreed with them and held that the law of a regional plague applies only to the past, such as if locusts consumed it or it was wind-blasted. However, regarding the future, this law is as written in siman 310 regarding one who hires a donkey and it became damaged such that it is no longer fit for riding, where the hirer pays him his wage for until now, and from then on the rental is voided. Likewise, Shimon had the ability to void the rental because of the damage that occurred, and since he sat in the shop and did not retract, he caused his own loss and must pay the entire rental for which he sat until now, and regarding the future he may retract. And this is like a defect in a purchase where one can void the rental, and once he has made use of it he cannot void it, as written in siman 232. And there are those who agreed with this opinion [Sma].

Our teacher, the Rema, disagrees with him and holds that there is no distinction between what has passed and what is in the future; for in any place where the matter was ruined and it is a makat medinah, he deducts from his rent. And if it is possible to repair it through effort and stratagems, he does not deduct for him, as in the case where the spring dried up but the river did not dry up, where he is obligated to exert effort and bring water from the river even though there is extra effort in this. And behold, an irrigated field and an orchard are regarding the future, and we adjudicate in this the law of deduction if it is a makat medinah. And so ruled Maharam of Rothenburg regarding a decree that was issued against melamdim that they should not study with students, that it is a makat medinah and the entire loss is upon the employer. And most of the great authorities agreed to this, and such is the primary ruling. And see what I wrote in siman 334, section 10.

And there is a question here: why regarding a lessee do we say that when it is not a regional plague the loss is upon the lessee, yet regarding one who rents a donkey in siman 310 and a house in siman 312, when they were damaged or it died or was burned, we rule that he does not need to pay him the entire rent, only for what he resided until now and what he traveled until now, even though it was not a regional plague? And there is one who says that the distinction is as follows: that in any place where the matter is completely nullified, such as with a donkey that it is impossible to ride upon any longer and with the house it is impossible to reside from now on, and consequently there is no status of rental here at all; but in a place where the thing that he rented is extant, such as leased fields, but much of its produce was damaged by locusts or the spring dried up and the tree was cut down, but nevertheless there are still fruits and the name "field" is upon it, therefore when it is not a regional plague, the entire loss is upon the renter [Taz]. And there is proof for this reasoning from what has been explained there, that if the donkey became blind and he rented it for a load, since it is still fit for its work, even though it is much harder than before, nevertheless the renter cannot nullify the rental. And even though when a blemish is found in a purchase it is still fit for its use and nevertheless the purchase is nullified, it is different there because it is not the same and it is a mistaken purchase, but one who rents a donkey or a field, it occurred from Heaven.

And there is one who distinguished in this manner: that when the damage occurred to the object that he hired, such as one who hires a donkey or a house and they themselves were damaged, this is not what he hired and they can cancel the rental even without a regional plague. However, in the case of one who hires a field, behold the field itself that he hired was not damaged, rather the spring was damaged or locusts ate the fruit; and therefore, when it is not a regional plague, the loss is upon the renter [Netivot HaMishpat].

And it appears to me that the essence of the matter is not comparable at all, for one who rents an object from his fellow without anything new being created in it—such as a donkey for riding or a house for dwelling—and at the conclusion of his rental period they return to their owners as they were, this is certainly a case where the object must remain extant until its end, and if they were ruined, it is revealed that the rental was nullified from that day. However, one who rents a field from his fellow does not rent it for the clods of earth, but rather so that he may sow upon it and it shall grow and he shall harvest it, and at the time of the rental this is hidden from the owners, and it is like a form of commerce according to what is decreed from Heaven. Therefore, with precision the sages, of blessed memory, said that if it is not a regional disaster, the luck of the renter caused it, for from both of them it was hidden what the produce would be, whether much or little. And just as if there were more produce than the estimation he would not give more to the owners, so too with less he shall not reduce. But regarding a donkey and a house, "the luck of the renter" is not applicable, for the donkey and the house return to the owners, which is not the case with the produce of the field.

The general rule of the matter: any rental where the purpose is to extract profit from the rental—such as a field to consume its fruits, or one who rents a shop for commerce, or one who hires a melamed for his son to consume the fruits of his Torah study, and this too is like a form of trade, for it is possible he will receive much Torah and it is possible he will receive little—the law in this case is that if it is not a "plague of the province," the loss is upon the renter, and in a "plague of the province," the loss is upon both of them, and so too in anything similar to this. However, in the case of one who rents an object not to consume its fruits, but rather a donkey to ride upon until a certain place, or a house to dwell in until a certain time, where there is no commercial business involved, we do not apply the law of "plague of the province" to this; for even when it is not a "plague of the province," since they became damaged, he may retract for the future.