Lease and Hire
LEASE AND HIRE
The Hebrew term sekhirut embraces the lease of immovable property (houses and fields) as well as the hire of movable property and personal services, and is a near parallel of locatio-conductio rei in Roman law. In this article the term "hire" is generally used as the equivalent of sekhirut in its wide sense and also with reference to movable property, whereas the term "lease" is used solely with reference to the hire of immovable property. For details concerning the hire of personal services, see *Labor Law.
In hire, the owner (the maskir) alienates to the hirer (the sokher) a real right in the demised property, the fruits and use of the property, for a fixed period, in return for a rental payable by the hirer to the owner. The rule is that hire is deemed to be a sale for a fixed period. This halakhah was stated in the Talmud with reference to the law of *ona'ah ("overreaching"); i.e., just as there is overreaching in sale so there is overreaching in hire, and just as there is no overreaching in the sale of land so there is no overreaching in the lease of land (see bm 56b and Tos., ad loc.; Sh. Ar., Ḥm 315:1). Some scholars held that the application of the above rule extended to additional halakhot: "A man may make any stipulation he wishes with regard to hiring just as he may do with regard to purchase and sale, since hiring is but a sale for a specified time. He who may sell may also let" (Yad, Sekhirut 7:1; see also She'elah, 1:5; Sh. Ar., Ḥm 315:2; pd 8 (1954), 577–81). Opinions are divided on the question of whether the owner may, within the period for which he has let his property, let such property to a third party (see Pitḥei Teshuvah, Ḥm 315, n. 1).
Formation and Determination of Hire
Property is hired in the same way as it is bought and sold (see *Acquisition; bk 79a; Yad, Mekhirah 1:18; Sh. Ar., Ḥm 315:1), and until the required formal act of kinyan is performed both parties are free to retract (Sh. Ar., Ḥm 307:2). The view was expressed that as regards the hire of movables, as opposed to their sale, the scholars had not abolished kinyan kesef ("acquisition by money"), because the subject matter of the hire would continue to belong to its owner, which would eliminate the apprehension that the latter might refrain from rescuing the property from danger – as there was reason to fear in the case of sale. The halakhah was decided accordingly (see Sh. Ar., Ḥm 198:6; Pitḥei Teshuvah, n. 8). Determination of hire, before expiry of the stipulated period, may be effected by an act of kinyan, i.e., by the hirer transferring his real right in the property back to its owner. A right of hire cannot be extinguished by way of waiver alone (see Sma, Ḥm 189). Just as a person's courtyard acquires for him (kinyan ḥaẓer), so he may acquire through a courtyard he has hired, and in this way acquire movables which are on the hired property (Yad, Mekhirah 3:7; see also Sh. Ar., Ḥm 198:5 and Siftei Kohen, n. 7). Similarly, movables may be transferred by the method of acquisition incidental to hired land (kinyan aggav; Kid. 27a).
Ambit of Contract
The ambit of hire is determined in accordance with the customary uses of the property concerned. Thus a person who hires a house also hires its surrounding garden and the like (Yad, Sekhirut 6:1), all subject to local *custom and the common usage of the terms employed by the parties in their contract (Yad, loc. cit.; see also Sh. Ar., Ḥm 313:1).
Obligations of the Lessor
The lessor must let to the lessee property which is fit for the intended purpose. If a house is let, the lessor must supply one with doors and windows properly affixed, and he must further ensure that all the things "which are produced by the craftsman and are essential to the habitability of houses and courts" are done (bm 8:7; Yad, Sekhirut 6:3; Sh. Ar., Ḥm 314:1). The fact that the lessee occupies the premises prior to the lessor's execution of all his required duties does not amount to a waiver of these on the part of the lessee, and the lessor remains responsible for their execution (Rema, Ḥm 314:1). Where the parties agreed on the letting of "this" – i.e., specified – house, the lessor will not, during the subsistence of the lease, be responsible for repairs; otherwise (i.e., where an unspecified house is let) the lessor remains responsible for repairs (Rema, loc. cit.). The opinion was expressed that even in the case where a specified house is agreed on by the parties, the lessor will, in certain circumstances, if the house has fallen into disrepair and become too dangerous to live in, be responsible for its repair (Sh. Ar., Ḥm 312:17 and Sma, n. 32).
In case of the destruction of the leased property (see below), the law as regards the lessor's need to make available alternative property to the lessee is as follows: "If a man let to another an unspecified house and after he delivered possession to the lessee the house collapsed, he is bound to rebuild it or to supply the lessee with another house. If the second house is smaller than the one that collapsed the lessee cannot object, provided it may be classified as a house, for it was but an unspecified house that the lessor let to the lessee. If, however, the lessor said, 'I am letting to you a house like this one,' he must supply the lessee with a house of the length and width of the one he indicated to him"; in the latter event, the lessor cannot depart from the dimensions and qualities of the said house except by mutual consent (bm 103a; Yad, Sekhirut 5:7; Sh. Ar., Ḥm 312:17).
Rental or Hire
Two views are expressed in the Talmud concerning the owner's right to payment of the rental or hire (Kid. 48a–b). One opinion is that the hire (i.e., wages) is "a liability from beginning to end" and that the hired worker becomes continuously entitled to this in accordance with the portion of the work done (Yad, Ishut 5:20; see also Akum 7:5 and Rashi, Kid. 48a, s.v.ella). A different opinion is that "wages are a liability only at the end" (Kid. loc. cit.), i.e., that the lessor does not become entitled to the rental until termination of the lease or – in the event that property was handed over for improvement – until return of the property to its owner (Rashi, Kid. 48b, s.v.einah li-sekhirut; but cf. Beit ha-Beḥirah, Kid. 48a). The halakhah was decided according to the first opinion (see Yad, loc. cit. and Sh. Ar., eh 28:7). However, the practical significance of the above dispute is confined to matters concerning the laws of *kiddushin and those concerning wages in cases involving idolatry, whereas it appears to have no relevance to relations between the lessor and lessee. Hence, as regards the time for the payment of the hire it was accepted as halakhah that "wages are a liability only at the end" (see Tos. to bk 99a and to bm 65a; but cf. Nov. Ritba, Kid. 48b). It is a positive precept to pay the worker's hire on time and failure to do so is a transgression of a pentateuchal prohibition (halanat sakhar) which was interpreted as extending to the hire of personal services and that of animals and utensils (see *Labor Law). However, as regards the rental for land and houses, disputing opinions are expressed in the codes (see Yad, Sekhirut 11:1; Sh. Ar., Ḥm 339:1 and Keẓot ha-Ḥoshen n. 1).
Where property is hired for a fixed period at a stipulated remuneration, the latter may not be increased within the said period (Sh. Ar., Ḥm 312:10; Rema, Ḥm 312:9). In the case where a property is tacitly relet on expiry of the hire period, and in the absence of any express agreement regarding the amount of the hire for the renewal period, the hirer – according to Hai Gaon – will be at an advantage: If the amount of the hire stipulated for the first period is higher than the appropriate amount, the hirer pays only the latter amount; if the stipulated amount is lower than is appropriate, the hirer nevertheless pays no more than the lower amount (ittur 1, pt. 1, s.v.sekhirut). On the other hand, from the Shulḥan Arukh it may be gathered that the hirer, in the above circumstances, always pays according to the stipulated amount for the first period, regardless of any increase or decrease in the customary rate (Ḥm 312:9; see also Nov. Meir Simḥah ha-Kohen of Dvinsk, bm 101b, s.v.va-agalleh). If the hirer retracts during the term of the hire he remains liable for the whole amount of the hire (Yad, Sekhirut 5:4; Sh. Ar., Ḥm 311:6).
Departure from the Object and Terms of the Hire
The hirer may not use the hired property for a more onerous purpose than that for which it was hired (Yad, Mekhirah 23:8; Sekhirut 4:1, 4–5; Sh. Ar., Ḥm 212:6; 308), subject to any different local custom (Yad, Sekhirut 4:8; Sh. Ar., Ḥm 308:3). If the hirer puts the property to any more onerous use, for which the customary hire is greater than the amount agreed upon, he must add to the hire accordingly (Rema, Ḥm 308:1). In certain circumstances it may be sought to safeguard that the property is put to its full stipulated use. Thus, for instance, the lessor of a shop may object to its being left vacant by the lessee lest the regular customers become accustomed to buying elsewhere, which would detract from the value of the premises (Resp. Maharsham, pt. 2, no. 198). Use of the property in a different but not more onerous manner than that agreed upon is held to be forbidden by some scholars but is permitted by others, who hold that to forbid this is "the practice of the Sodomites" (see *Law and Morality; Tur., Ḥm 308:3–4; 311:3–4; Perishah, ibid. 4; Sma, Ḥm 311, n. 2).
If a house is jointly hired (see *Partnership) by two persons for their cotenancy, neither may transfer his rights in it to a third party – not even if the latter has a smaller household – except with the consent of the other partner. Similarly, one tenant cannot compel his cotenant to partition the tenancy, since the house is not their property but is only let to them for a term. However, it was held that joint lessees of a field can compel each other to a partition of the lease (Sh. Ar., Ḥm 171:9 and Rema ad loc.; Ḥm 316:2 and Sma n. 6). The lessee may not, without the lessor's consent, take in any of his relatives or acquaintances to live with him in the house as one of its occupants, unless they are dependent on him (Yad, Shekhenim 5:9; Sh. Ar., Ḥm 154:2). As regards the stipulated terms, the rule is that these may not be departed from except where their strict enforcement would amount to "following the practice of the Sodomites" (Yad, Sekhirut 7:8; Sh. Ar., Ḥm 318).
Assignment and Subletting
The rule is that the hirer may not sublet to someone else (Tosef., bm 3:1; Git. 29a). To do so without authority will render the sublease voidable (Maḥaneh Efrayim, no. 7). There are several qualifications to this rule: It was laid down that a person who hires a cargo boat and unloads the cargo in the middle of the voyage may let the boat to someone else (for the rest of the journey), and the owner will have "a grievance only" against the original hirer; similarly, if the hirer sells the cargo in the middle of the voyage, disembarks, and leaves the purchaser to embark, the owner takes one-half of the freightage from each of the other two and the owner has "but a grievance against the seller for causing him to endure the inclinations of another man to whom he is not accustomed"; and so too in other similar cases (Yad, Sekhirut 5:4; Sh. Ar., Ḥm 311:6). This halakhah was extended by way of analogy: "On the basis of the above rule [Yad, loc. cit.].
I hold that if the owner lets his house for a fixed period, the lessee may sublet it to another until the end of the said period … since the rule of the sages that the hirer may not let applies only to movables, where the owner may say 'I do not wish my property deposited with another'; but as regards land, or a boat on which its owner is present, the owner cannot say so" (Yad, loc. cit. 5:5). Other scholars expressed the view that the lessee may never sublet the house, "for there are people who ruin the house that they occupy" (Yad, loc. cit., Hassagot Rabad and Maggid Mishneh, ad loc.). According to some scholars, even "chattels which are not likely to be carried away and which are habitually hired out and given in loan by their owners" may in turn be hired out and lent to third parties (Resp. Rashba, vol. 1, no. 1145; see also Maḥaneh Efrayim, Sekhirut no. 19). The halakhah was decided thus: "A person who has hired an animal or chattels may not hire these out to anyone else" (Sh. Ar., Ḥm 307:4; see also 316:1). Similarly, a field may not be sublet, since in this case it is feared that the sublessee may do with the field as he pleases (see Sma, Ḥm 212:16 and 316:1).
The permissibility of subletting in the case of a house is subject to a number of restrictions. It may only be done if the members of the subtenant's household do not number more than those of the existing tenant (Yad, Sekhirut 5:5). It is also a condition that the sublease shall not entail a more onerous use than did the original lease. In addition, the lessor always retains a preemptive right to demand the leased property for himself and release the lessee from further payment of the rental (Yad, loc. cit.; see also Sh. Ar., Ḥm 316:1; Divrei Ge'onim 104:40). Similarly, the lessee may not sublet to a disreputable person (Rema, Ḥm 312:7), or to someone who is hateful to the lessor (Taz, Ḥm 312:7), or to someone who will fail to take proper care of the property (Arukh ha-Shulḥan, Ḥm 316:2). In the case of a lawful sublease, any reward the lessee derives from it will belong to him, otherwise to the owner of the property (see Maḥaneh Efrayim, Sekhirut no. 19).
Frustration of Hire
It was laid down that if a hired ass fell sick or was taken into the king's service, it would not have to be replaced by its owner; however, if the ass died, the owner would be so obliged (bm 6:3; bm 78b; Sh. Ar., Ḥm 310:1). The owner's exemption from the need to replace an ass if it fell sick was interpreted to be specifically applicable to the case in which an ass is hired to carry a normal load, since it would still remain possible to put the ass to some use; however, an ass that is hired to be ridden, or to carry glass utensils, has to be replaced by its owner, since there is no possibility of using it for the purpose for which it was hired (bm 79a; Sh. Ar. loc. cit.). In the case where the ass dies, a distinction is made between the hire of a specified ("this") ass and the hire of an unspecified one. In the case of an unspecified ass, the owner must replace it with another, otherwise, if the worth of the carcass suffices for the purchase or hire of another ass, the hirer must apply the proceeds there from toward the purchase or hire of an ass for the original purpose (bm loc. cit.; Sh. Ar., Ḥm 310:1–2; see also Tur., Ḥm 310:2, Beit Yosef and Darkhei Moshe, ad loc.).
In the Talmud it is laid down that if a specified house is hired, the loss – in the event of its collapse – is that of the lessee, and no provision is made for him to apply the proceeds of the sale of the boards and bricks toward the purchase or hire of another house (bm 103a; Sh. Ar., Ḥm 312:17). However, an opinion was expressed that the lessee should do so in the above circumstances (Ramah in Tur, Ḥm 312:6), and some scholars distinguished between the hire of an ass and that of a house (see Tos. to bm 79a; Shitah Mekubbeẓet, bm 79a, under Ha de-Amrinan in the name of Rabad). If a house is demolished by the lessor, he must make available a similar house to the lessee and he must do likewise if he has caused the lessee to vacate the house during the period of the lease (Yad, Sekhirut 5:6; Sh. Ar., Ḥm 312:2).
Four possibilities are distinguished as regards payment of the rent upon frustration of the lease, all illustrated by the case of a ship hired for the transport of wine which sinks with all its cargo:
(1) If a specified ship was hired for transporting a cargo of unspecified wine, the hirer will be exempt from payment of the freightage and entitled to a refund if he has already paid; this is because the hirer is prepared to submit other wine for transportation but the owner is unable to offer him the ship hired (bm 79a; Sh. Ar., Ḥm 311:2). When the hirer can benefit from part performance of the contract – for instance if the cargo is salvaged and the hirer is able to transport it in some other manner to its destination, or to sell it at the place to which it has been brought – the ship owner will be entitled to part payment of the freightage, pro rata to the measure of the contract executed (see Tos. to bm 79a; Rema, Ḥm 310:2, 311:2).
(2) If an unspecified ship was hired for the transport of a cargo of specified wine, the hirer will be liable for the freightage, since he presents the obstacle, inasmuch as the shipowner is able to offer another ship whereas the hirer is unable to submit the same wine that was lost (bm 79a–b). There is an opinion that the hirer, in the above event, is only liable for part payment, pro rata to the measure of the hire executed (Tos. to bm 79b; Sh. Ar., Ḥm 311:3 and Rema ad loc.). There is also an opinion that in circumstances where the cargo is lost even though the ship has not sunk, the hirer, in spite of the fact that he presents the obstacle, is exempt from payment of the hire since the obstacle has arisen from an inevitable accident (see *Ones; Tos. to bm 79a; Sma, Ḥm 311, n. 2; Siftei Kohen, ibid., n. 2).
(3) If a specified ship was hired for transporting a cargo of specified wine, the rule is that since the obstacle is presented by both parties, the party in possession is at an advantage; if the hirer has not yet paid the freightage he need not do so, but if he has already done so he will not be entitled to any refund (bm 79b; Sh. Ar., Ḥm 311:4).
(4) If an unspecified ship was hired for transporting a cargo of unspecified wine, the shipowner and the hirer share the freightage (bm 79b; Sh. Ar., Ḥm 311:5).
In the case where the lessee of a house dies during the currency of the lease, according to one opinion the lessor will not be entitled to the full rental but only that for the period for which the house was occupied, unless it was otherwise stipulated by the lessor; another opinion is that the lessor remains entitled to the full rental (Rema, Ḥm 334:1; see also Divrei Ge'onim, 104:16).
Termination of the Contract
A lease for a fixed period terminates on expiry thereof and may not be terminated by the lessor prior to this date (Yad, Sekhirut 6:6; Sh. Ar., Ḥm 312:1, 8). At times, in the absence of a stipulated time for the termination of a lease, the expiry date will be determined in accordance with the surrounding circumstances. Thus, if the rental has been paid in advance, even for a lengthy period of time, the lessor will not be able to eject the lessee until expiry of the period for which the rent has been paid (Sh. Ar., Ḥm 312:1 and Rema ad loc.). Sometimes the date of termination of a lease is governed by local custom relating to such a particular category of lease (Tosef., bm 8:28; see also Yad, loc. cit.; Sh. Ar., Ḥm 312:4). The lessor's sale of the leased premises is valid but does not have the effect of terminating the lease, and the purchaser may not eject the lessee until expiry of the lease period; the same applies when the premises are transferred by gift or inheritance (Yad, Sekhirut 6:11; Sh. Ar., Ḥm 312:1 and 13; see also I.S. Zuri, Torat ha-Mishpat ha-Ezraḥi ha-Ivri: ha-Irurim, 2 (1935), 105, n. 36).
In the case where premises are let for an unspecified period, the scholars laid down the need for advance notice of termination. The rule is as follows: "He who lets a house to another for an unspecified term may not dispossess the lessee from the house unless he notifies him 30 days in advance, so as to enable him to find a place and prevent his being thrown into the street. At the end of the 30 days the lessee must vacate the premises" (Yad, Sekhirut 6:7, based on bm 8:6 and bm 101b; see also Sh. Ar., Ḥm 312:5). In certain circumstances, depending on the nature of the premises and its location, longer periods of notice are required (bm and Yad, loc. cit.). The obligation to give notice is mutual and, as regards the lessee, he may not vacate the premises without prior notice, but must pay the rent (Yad, Sekhirut 6:8 and Sh. Ar., Ḥm 312:7; see also Pitḥei Teshuvah thereto; pdr 3:281–3; 6:113). When a lease is tacitly renewed for lack of prior notice of termination, the rent for the renewal period must be paid at the new prevailing rate, whether higher or lower than before (Yad, Sekhirut 6:9 and Sh. Ar., Ḥm 312:9). If the lessor requires the premises for himself, for instance when his own dwelling has collapsed, he may eject the lessee from the leased premises, saying to him: "It is not right that you should remain in my house until you find another dwelling place, while I am lying on the street; your right in this house is not greater than mine" (Yad, Sekhirut 6:9 and 10; Sh. Ar., Ḥm 312:11; see also Resp. Radbaz, no. 1214; Nov. Akiva Eger to Sh. Ar., Ḥm 312:13). The fact that relations between the lessor and lessee have deteriorated during the currency of the lease is no ground for its termination; however, if at the time of the letting the lessor declared that he was only doing so because of his friendship for the lessee, then if the two become enemies in the meantime, he is entitled to terminate the lease (Rema, Ḥm 312:9; see Pitḥei Teshuvah n. 6).
Laws of Evidence
Based on the rule that "the burden of proof rests on the person seeking to recover from another," it was laid down that in case of ambiguity in the terms of the lease the owner of the premises is in possession and holds the advantage until the lessee brings evidence to support his claim. Thus if it is unclear whether an intercalated (leap year) month is for the benefit of the lessor or the lessee, the benefit will accrue to the lessor (bm 102b; Yad, Sekhirut 7:2; Sh. Ar., Ḥm 312:15). Similarly, in the case of dispute over whether the lease was for a fixed or for an unspecified period – which would have a bearing on the need or otherwise for prior notice of termination – the burden of proof will rest on the lessee (Yad, loc. cit.; Sh. Ar., Ḥm 312:16 and Rema ad loc.) and likewise in the case of dispute as to the date of commencement of a lease for a fixed period (Yad, Sekhirut 7:4; Sh. Ar., Ḥm 317:2; for additional rules see Yad, Sekhirut 7:6; Sh. Ar., Ḥm 317:3). If there is a dispute between the lessor and the lessee over whether the rent has been paid or not, then – if the lease was for a term of 30 days and the lessor has claimed the rent within this period, or if there was a stipulated date of payment and the rent has been claimed prior to this date – the lessee will have the burden of proving that he paid the rent, since it is presumed that "a person does not pay prior to due date" and that "rent is payable only at the end"; if, however, the claim is made on the 30th day or on the stipulated date, the lessor will have to prove that he has not yet been paid (Yad, Sekhirut 7:3; Sh. Ar., Ḥm 317:1).
Precepts Relating to Property
The letting of premises has a bearing on the question of whether the duty of fulfilling the precepts relating to such property falls on the lessor or lessee. As regards the precept of searching out leaven on Passover eve, it was laid down that the duty devolves on the lessor if he has not delivered the key to the lessee before the 14th day of Nisan; if he has delivered the keys before this date, the duty is the lessee's (Yad, Ḥameẓ 2:18). At the same time, the fact that the lessee finds that the house he has hired has not been searched for leaven – even though he has hired it on this assumption – does not entitle him to void the contract on the grounds of error, since it is every person's duty to perform a mitzvah personally (Yad, loc. cit.; see also Sh. Ar., oḤ 437:1, 3).
Ḥokher and Mekabbel
In two cases, in which the lessee is called a ḥokher and a mekabbel respectively (as defined below), the consideration is payable in different manner to that of the sokher. If a produce-bearing field or vineyard is rented for money, the lessee is called a sokher; when it is rented for a stipulated amount of the produce the lessee is called a ḥokher; when a person hires a field or orchard with the obligation to cultivate it, to incur the necessary expenses, and to pay a stipulated portion of the produce derived there from, he is called a mekabbel (Yad, Sekhirut 8:1, 2; Sh. Ar., Ḥm 320:1–3). There is one law for the sokher and the ḥokher (loc. cit.). As regards the mekabbel and the ḥokher (the two cases are referred to as kabbelanut or arisut), "whatever is essential to the protection of the land is chargeable to the owner and whatever constitutes added precaution is chargeable to the farmer (ḥokher) or tenant on shares (kablan)." The utensils and instruments for cultivation of the land – such as a spade for digging the ground or the vessels in which the dirt is carried – are chargeable to the owner. There is an opinion that the aforesaid obligations of the owner relate only to the mekabbel and not the ḥokher (Yad, Sekhirut 8:2; Sh. Ar., Ḥm 320:3).
The owner derives his share from whatever is produced by the land, whether good or bad. If the field yields bad produce, the ḥokher nevertheless pays with this, and if good wheat is produced he may not say to the owner, "I will buy wheat for you from the market," but must pay out of this crop (Yad, Sekhirut 8:7; Sh. Ar., Ḥm 323; see Sma n. 3). The nature of the work which must be done by the ḥokher in cultivating the field is determined by local custom (bm 9:1; Yad, Sekhirut 8:6; Sh. Ar., Ḥm 320:4; Sma n. 2). If a field is leased on the condition that it is sown with a particular crop, the ḥokher may only sow a different crop which is less and not more exhaustive of the soil. In case of deviation, the ḥokher will have to purchase produce on the market for delivery to the owner as stipulated between them (Yad, Sekhirut 8:9; Sh. Ar., Ḥm 324). As regards a mekabbel, one opinion holds that he may depart from the stipulated manner of cultivation, even if this is more burdensome on the land, and another opinion is that he may not do so even for a less burdensome result (Rema, Ḥm, loc. cit.).
If a field taken by a mekabbel fails to produce its anticipated yield, nevertheless, if there is a prospect of extracting a yield exceeding the expenditures by a minimal amount, the mekabbel will be obliged to cultivate the field against his will – since this is part of his undertaking whether or not it was expressly stipulated in writing (Yad, Sekhirut 8:12; Sh. Ar., Ḥm 328:1 and Rema ad loc.). If a mekabbel lets a field lie fallow, an appraisal is made of how much the field would have been likely to yield and the former must pay the owner his estimated due share – since this is part of his undertaking to the lessor, whether or not expressly stipulated. Such an undertaking was held not to be defective on account of *asmakhta, since here the mekabbel does not take upon himself an obligation for something that is fixed, but only to indemnify the owner in accordance with the loss caused the latter, and hence the mekabbel is deemed to have firmly made up his mind to bind himself to the obligation. If, however, the mekabbel undertook to pay the owner an amount that is found to exceed the estimated loss, this will amount to asmakhta, and he will be liable to pay only according to the actual loss (Yad, Sekhirut 8:13; Sh. Ar., Ḥm 328:2).
Frustration of Ḥakhirah
A distinction is made between partial frustration – for instance, if the tributary spring feeding an irrigated field dries up, or if a tree on the plantation is felled – and frustration deriving from a widespread misfortune – for instance, if the river dries up leaving no possibility at all of irrigating the field. In the first case the lessee may not make any deduction from the rental since it is regarded as his own misfortune; in the second case he may make such deduction. If the owner stood in the field and said to the lessee, "I am letting this irrigated field, or this tree plantation to you," his statement will be interpreted to mean that the lease was made as though the owner was letting the field as it was then, without change, and therefore the lessee will be entitled to make a deduction from the rental (Yad, Sekhirut 8:4, 5; Sh. Ar., Ḥm 321 and 322).
Termination of Ḥakhirah
If on termination of the lease unharvested produce remains on the field, or if the market day for the sale of already harvested produce has not yet arrived, an appraisal is made of the lessee's share therein (Tosef., bm 9:1; Yad, Sekhirut 8:10; Sh. Ar., Ḥm 327:1). If the lessee dies within the term of the lease and is survived by his son, the position is as follows: If the father had already received everything due to him for the whole of the term and the owner of the field does not wish to entrust it to the son until completion of the term and for the agreed purpose, the son will not be required to return anything received by his father in excess of the measure of his cultivation – since the son may say that he will complete the cultivation of the field if it is left with him; if the father had not yet received any part of his due share and the son should ask the owner to entrust the field to his further cultivation until expiry of the agreed term and in return for the whole of his father's stipulated share, the owner – who in this case is in the favored position – may deny the existence of any business tie with the lessee and proffer him payment in accordance with the measure of the work done by his father (Sh. Ar., Ḥm 329; Sma n. 1).
Lease – Property Law or Contract Law?
In defining the juridical essence of lease under law, four approaches may be discerned:
property (in rem) right
According to this approach, accepted by most medieval authorities (rishonim), the lessee has a property (in rem) right to use and possess the leasehold for a limited time, as implied by the Talmudic rule "A lease, within its time, is a sale" (bm 56b). The nature of a lease, as a property right, is expressed in many ways, inter alia: a lease is passed on as inheritance (Resp. Rashba, 2:328); the sale of the leasehold by the lessor does not impinge on the rights of the lessee (Sh. Ar., Ḥm 312:1); and during the leasing period of the lease, any abandoned property found on the leasehold belongs to the lessee, not the lessor, by force of a kinyan ḥaẓer (i.e., the actual location of an object in the owner's ḥaẓer (= yard) confers ownership, without the requirement of an additional act) (Sh. Ar., Ḥm 260:4; Sema, 260:13; and see Keẓot Ha-Ḥoshen 313:1).
Although the lessee acquires a property right in the lease-hold, this does not imply that he bears the risk of being denied its use, nor does it imply that during the lease period, the lessor has no duty to the lessee. Although a lease is much like a temporary sale, it is not a full-fledged sale. The difference between a lease and a sale stems primarily from the fact that the lessee has only acquired the right to the possession and use of the leasehold, while the lessor retains title of the leasehold. This difference explains why, in certain situations of prevention of use – especially in cases of damage to the leasehold, the property of the lessor – the lessee is not required to continue his rent payments (Yad, Sekhirut 5:6; Resp. Maharam of Padua, 39; inter alia). The same difference may also explain why the lessee may demand the repair of any damage that occurs to the leasehold during the period of the lease (Sema, 312:32).
According to this approach, accepted by more recent authorities (aḥaronim), a lease is a personal obligation of the lessor to the lessee to enable the latter to make use of the leasehold, and the lease itself lacks any in rem foundation. "A lease does not affect acquisition" (Avodah Zarah 15a), except that the lessor encumbers the leasehold for the fulfillment of his obligation. That is, the lessee has no property right to the leasehold itself, but only a personal claim to demand that the lessor fulfill his contractual obligations. It should be noted that in most leasing matters, the legal essence of the lease as a personal contract and not as property-in rem would yield similar legal results (either by the implied agreement between the parties or by the force of the rabbinic enactment). Nevertheless, the conceptual difference may have practical implications in various specific contexts, for example, kinyan ḥaẓer (see above): according to the contractual approach, even during the lease period, the lessor has ownership of any abandoned property found in the leasehold (Shakh, Ḥm 313:1); while according to the property approach, it is the lessee who acquires ownership, as noted above.
two types of lease
Among the proponents of the property approach, there are those who contend (contrary to the aforementioned view) that since the lessee has a property right on the leasehold, he must assume all the risks other than force majeur, of being denied its use (Samson ben Abraham of Sens, cited in Teshuvot Maimoniyyot, Mishpatim, 27). However, strict adherence to the property law approach contradicts several Talmudic passages. For example, the Talmud (bm 79a) explicitly rules that when an ass is leased and dies along the way, the lessee is free of any financial obligation; an exemption that prima facie contradicts the property approach. Thus, they are forced to explain that concomitant to the property based lease, there is another kind of lease to which the principle that "a lease, within its time, is a sale" does not apply and which is entirely contractual in nature. (This is one of the rationales offered for the property approach, e.g., Resp. Ḥavaẓelet ha-Sharon, 1st ed., Ḥm, 30). Thus, their view is that Jewish law recognizes two types of lease, a property-based lease and a contractual lease, although the criterion for distinguishing between the two is not clear.
There is also a view that a lease has both property and contractual aspects. The property aspect confers the lessee property rights to the leasehold (with all that is implied thereby, such as kinyan ḥaẓer); while the contractual aspect imposes a number of personal obligations on the lessor to the lessee, intended to ensure that the latter gains maximum benefit from the contracted property, such as prohibiting any interference with his use of the leasehold and the requirement to repair any damages (see Rashba, cited in Shitah Mekubeẓẓet, bm 78a, s.v.od katav ha-rav). This view was also expressed by Justice Silberg (ca 208/51 Hacker v. Barash, 8 pd 566, 580), who concluded, on the basis of the Derishah (Ḥm 316:1) that a lease is a hybrid creation, because a lessee may not, under any circumstances (other than subletting), transfer the leasehold to another party without express agreement of the lessor (although this inference is not the only possible conclusion to be drawn from the Derishah source).
[Michael Wygoda (2nd ed.)]
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