Story LineDefective PlumbingRabbi Meir Orlean
The Brachs spent a good part of their time traveling and visiting their children.
They arrived one Thursday afternoon to visit their daughter, but discovered that the plumbing in the apartment they’d rented was problematic. The shower and toilet backed up and emitted a foul odor.
“We can’t live this way!” declared Mrs. Brach.
Mr. Brach contacted the landlord. “There is a problem,” the landlord acknowledged. “We’ve had to fix it a number of times. The plumber won’t be available before Shabbos, though. After the weekend, I can call him again.”
Mrs. Brach spoke with her daughter. “I know that you like your privacy,” the daughter said, “but we have room for you. You’re welcome to move in with us!”
“We don’t want to impose on you,” said Mrs. Brach.
“It will be our pleasure to have you for as long as you want,” said the daughter. “We’re happy to host you for the whole visit!”
Mrs. Brach discussed the issue with her husband. “The situation does not sound promising,” she said. “It will be a few days until the plumber comes, and it’s not clear that he’ll solve the problem completely.” They decided to accept their daughter’s offer.
Mr. Brach notified the landlord that they were vacating the apartment and wanted their money returned. “You misled us,” he argued. “The apartment is not fit for living.”
“What’s the rush?” asked the landlord. “After the weekend, the plumber will come and fix it.”
“We’re not interested in waiting!” replied Mr. Brach.
Mr. Brach and the landlord came to Rabbi Dayan. “Are we entitled to cancel the rental and demand a refund?” Mr. Brach asked.
“Just as mekach ta’us (purchase under false pretenses) or mum b’mekach (defective merchandise) applies to a sale, it applies to a rental, which is like a purchase for the designated time,” replied Rabbi Dayan. “If the apartment turns out to be defective, the tenant can void the rental and demand a refund. Defective plumbing that hampers daily living is sufficient basis to claim mekach ta’us; even a constant foul odor is considered unbearable” (C.M. 155:34; 232:3; Pischei Choshen, Sechirus 4:4).
“What if I were to fix the plumbing completely?” asked the landlord.
“Halachah distinguishes between a temporary defect (mum over) and a permanent one,” answered Rabbi Dayan. “Rosh (Responsa 96:6) addresses the case of one who sold a house in another city, but gentiles had removed some windows and doors and dirtied the walls. He ruled that the sale was valid, since the defect was proportionally minor and transitory; the structure of the house remained intact. Thus the seller can uphold the sale and refund the amount needed to restore the house to its initial state” (C.M. 232:5; Pischei Choshen, Onaah 13:4).
“Is a rental the same?” asked Mr. Brach. “Time is of the essence!”
“Michtam L’David (C.M. #10) maintains that this distinction applies to a rental as well,” continued Rabbi Dayan. “If the defect is not structurally integral, the landlord can repair it and refund the rent for the days that the unit was unusable.
“However, this is not simple,” continued Rabbi Dayan. “The Gemara (Pesachim 4b) teaches that if a person rents a house on Erev Pesach, but it was not checked for chametz, the tenant cannot retract, because people are prepared to spend for a mitzvah. This implies that otherwise he could retract, even though the house can be checked and the ‘defect’ is transitory.
“Magen Ha’elef (O.C. 437:7) suggests a distinction between an investment purchase and a rental or purchase with intent to move in immediately, where it is not possible to wait for the repairs.” (See also Ohr Sameach, Mechirah 17:9.)
“Thus, if the defect can be repaired promptly and fully,” concluded Rabbi Dayan, “the tenant may not void the rental; otherwise he may.”
From the BHI HotlineCheck Checking
Reuven needed $5,000 immediately. Shimon agreed to lend him the money, but he lives in another city and could not wire the money immediately. Reuven approached Levi and asked him to advance him the money, and when Shimon’s check arrived, Reuven would give it to Levi. Levi agreed but stipulated that Shimon give the $5,000 check to Yehudah, Levi’s friend who lives in Shimon’s city. Levi instructed Yehudah to call him as soon as he received Shimon’s check and when Yehudah would call him, he would then give Reuven $5,000.
Yehudah called Levi when he received the check; Levi then gave Reuven $5,000.
Q: What is the halachah if:
(A) Shimon cancels the check?
(B) Yehudah is irresponsible (poshei’a) and loses Shimon’s check?
(C) Yehudah didn’t look at the check carefully and it was written for $500, not $5,000?
(A) Shimon is not permitted to cancel the check, and if he does, he is obligated to replace it. Levi gave Reuven $5,000 relying on Shimon’s check. Therefore, Shimon is responsible as an arev (a guarantor). If Shimon cancels the check, Yehudah is not responsible. Yehudah was instructed to take the check from Shimon and then call Levi. Since he performed his task, he is not liable if Shimon subsequently cancels the check. If Levi wanted an assurance that Shimon would not cancel the check, he should have demanded a money order or something comparable.
(B) If Yehudah negligently loses the check, technically, he cannot be held liable. The Torah exempts a custodian of financial documents (shtaros) (C.M. 66:39-40 and 301:1). The Torah excluded from custodial liability objects that have no intrinsic value (ein gufo mammon) and merely represent debts or rights. However, there is a dispute whether negligence triggers liability (ibid.) and since there are authorities who contend that he is exempt, a custodian cannot be compelled to pay (kim li) (Pischei Teshuvah 301:4; Erech Shai 66).
Although a negligent custodian cannot be compelled to pay, some authorities contend that a negligent custodian has a moral obligation to repay the damaged party (Imrei Binah, Hilchos Pesach 5). Others assert that the Torah’s exemption from custodial responsibility includes any moral obligation to make restitution (Erech Shai, C.M. 95:4, see Maharsham 2:138; Chazon Ish, B.K. 2:7; cf. Birkas Shmuel, B.K. 2; Chiddushei Harim, B.K. 56a).
(C) Whether Yehudah bears any responsibility if he did not examine the amount of the check depends on whether he was expected to do so. If his assignment was simply to take the check from Shimon, he is not responsible. On the other hand, if Levi advanced the money because he assumed that Yehudah properly confirmed the amount of the check and Yehudah negligently did not, Yehudah is liable. This is similar to a money changer who assured a customer that his money was valid currency but was mistaken. In both cases the liability is due to the principle of garmi (indirect damage that borders on direct; see C.M. 306:6 and Divrei Chaim, Nizkei Mammon 8:2). [See C.M. 129:2, Sma 7 and Shach 7 for another example of this principle.]
Yehudah cannot claim exemption from liability for not examining the check since Shimon could have canceled the check even if Yehudah had properly examined it. The reason this claim is rejected is that if Levi had possession of a check with the correct sum, he would have strong evidence of his claim to the original, agreed-upon amount (see Knesses Hagedolah 386:85 and C.M. 69:2; 386:2).
Money mattersLand of Israel#432
Q: Does dina d’malchusa apply in Eretz Yisrael?
A: This question is subject to extensive dispute. Rambam (Hil. Melachim 4:1) rules that the practices of the Jewish king mentioned in sefer Shmuel are legal rights. Similarly, Rambam and Shulchan Aruch affirm the king’s rights to levy taxes, whether Jewish or non-Jewish (Hil. Gezeilah 5:11; C.M. 369:6).
However, others maintain that the practices of the king are not legal rights, but were instituted to threaten the people (Nimukei Yosef, Nedarim 28a).
Furthermore, some base dina d’malchusa on the rationale that the land belongs to the king; he allows people to live there only subject to his laws. According to this, dina d’malchusa would not apply in Eretz Yisrael, since the land does not belong to the king; all Jewish people are inherent partners in it (Ran, Nedarim 28a).
Nonetheless, dina d’malchusa would still apply to rules necessary to maintain proper order in the land, or to a democratically elected government according to those who base it on acceptance by the populace (Pischei Choshen, Geneivah 1:).