I. Framing the Problem: “They say ‘We’re in this together,’ but are we really?”
Patricia Mendoza rents in Imperial Beach, California. She is a single mother of two children, and she works for a non-medical emergency transport company. She is a member of ACCE (The Alliance of Californians for Community Empowerment). Before the pandemic, she was making $2000 a month, and her rent was $1500. Now, Patricia cannot make her rent payments. She is not alone. In July 2020 19% of Americans did not pay their rent and another 13% made partial rent payments. As unemployment rises above 10%, and federal and state moratoria begin to expire, many people could be evicted from their homes.
108 million people rent their homes in the United States, and around four millions evictions are filed every year. The housing crisis is not new, and the pandemic has only made a bad situation worse. Many renters were in trouble before Covid arrived: one in four tenants in the United States use more than half their income to pay rent. Over the past several decades, median housing prices have risen 121%, while median incomes have only risen 29%.
The lack of affordable housing was compounded by the 2008 housing crash, in which ten million Americans lost their homes due to foreclosure. That crisis has changed the way Americans live. Less than a third of those who lost their homes to foreclosures during the financial crisis were able to become homeowners again: their “credit and psyches” were tarnished. Moreover, as Francesca Mari discusses in the NYRB, some ended up renting the very homes they had lost in 2008. They rent these houses from large, corporate landlords, which acquired them indirectly from the federal government at bargain prices and have now jacked up the rents and refuse to provide basic services.
More broadly, there are more renters now than before 2008. In particular, in almost half of large cities, renters outnumber homeowners. Homeownership is increasingly out of reach for all but the wealthy. As The Right to the City Alliance argues, if the 2008 housing crisis hit homeowners, the recent housing crisis has hit renters, who are unable to afford the cities in which they live. This crisis, which is nearly a decade old, has become an emergency due to the mass unemployment caused by Covid 19.
*
In this source sheet, we will explore two questions: Do people not need to pay rent in a crisis? And, if one answers that they should, should people who can’t pay rent get evicted? The sources included below will offer solutions to the current housing crisis, rooted in Jewish law and ethical guidelines from our Torah.
An important caveat: strictly speaking, there’s a question of how the laws described here interact with secular law, to whom they apply, and so on (questions connected to the Jewish legal idea dina d’malkhuta dina, “the law of the government is law”). We are treating the halakhic (legal) texts discussed below as an ethical tradition which makes claims on us and should shape how we think about secular law and policy.2
The reasons to study these laws, in our opinion are: 1) they suggest that rent cancellation isn’t just a meritorious, compassionate act of generosity—it might be instead a right that tenants have and 2) it reframes how we think about renting and property relationships generally, relativizing some of the assumptions of late-capitalist America.3 A corollary of this point is that there will necessarily be some imprecise adjustment between the recommendation of these sources and the policy in the United States. For instance, we will look at many sources that discuss rent reduction, but the best mechanism for implementing that practically in our context may be a rent cancellation combined with some bailouts for eligible landlords. In such cases, the underlying point that emerges from the texts discussed below is that landlords may not have the intuitive normative claim to full rent payments right now that they ordinarily do. The movement for rent cancellation captures a core ethical and legal intuition embedded in Jewish sources, even if the quantitative details are complex.
Finally, our learning is inspired by Mendoza’s voice. We want policy makers, communities, companies and individuals to listen to renters on the brink of eviction. Here is one of her statements we think is especially powerful:
I just want the government to cancel rent, to cancel mortgage payments by taxing corporate landlords or Wall Street companies that have been making billions. They say “We’re in this together” but are we really? Am I going to tell my kids three or six months from now that we have to be homeless, that we have to live in a van? I mean, really?
II. Framing the Question: Half-Enslaved, Half Free
We want to frame our exploration with the following Hasidic story, which serves as an entry point into the way Jewish texts think about landlord-tenant relations, but which is also evocative on the situation of the tenant.
הרב ברוך מאיר לוין, בעל בית ושוכר בהלכה 85 הערת שוליים141
ושוב ראיתי שהובא מעשה אודות חסיד עשיר של החידושי הרי״ם שהיה עומד לפנות דייר אביון ששכר דירה מאתו, על שלא שילם השכירות, והוכיח החידושי הרי״ם להמשכיר על זה. וענה לו המשכיר שהוא מוכן להשתתף בנדבה הגונה למענו, אבל מדוע הוא מחויב יותר מהאחרים, לשאת בעצמו כל ההפסד?
ענה לו החידושי הרי״ם שהרי מצינו גבי מי שחציו עבד וחציו בן חורין, שכופין את רבו לשחררו בכדי שיוכל להנשא. והרי גם בזה יש לשאול, למה חייב רבו לשאת כל ההפסד, העבד ילך ויקבץ נדבות כדי לפדות עצמו. אלא על כרחך כיון שהעבד נפל בחלק של הרב עליו לספוד את ההפסד. וגם כאן כיון שהוא שוכר שלך עליך לשאת זאת.
Rabbi Baruch Meir Levin, Landlord-Tenant in Halacha, 85n141
I saw a story, brought about a rich Hasid of Yitzchak Meir Rotenberg-Alter [i.e the first Gerer Rebbe, 1799-1866], who was going to evict a poor tenant who had rented from him, because he could not pay the rent. And the Gerer Rebbe rebuked the landlord about this. The landlord answered that he was ready to participate in the appropriate collection for him, but why was he [the landlord] obligated more than others, to carry on himself the entire loss? The Gerer Rebbe answered him: “We find with respect to someone who is half-enslaved and half-free that we force his master to free him so he can marry. And behold, also in this case one might ask, ‘Why is his master obligated to take all the loss? Let the enslaved man go and gather contributions to redeem himself!’ Rather, you must say that since the enslaved man fell into the portion of the master, it’s on him to absorb the loss. And also here, since he’s your renter, it’s on you to bear this.”
Questions:
—What is the rich Hasid’s proposal for solving the problem of the poor renter? What kind of policy situations, in our world, might he support?
—What is the Gerer Rebbe’s response? The case he refers to is Mishnah Gittin 4:5: in rabbinic law, the enslaved can marry the enslaved; free people can marry free people. The person who is half-enslaved and half-free cannot marry anyone. Beit Shammai decrees that his master must free him for the sake of tikkun olam (literally, the fixing of the world); the formerly enslaved person writes the master a letter of obligation for the money.
—What does it mean for someone to “fall into someone else’s portion”?
Takeaways:
—On a very limited level, the Gerer Rebbe doesn’t think that non-payment of rent is sufficient reason to evict someone! That’s remarkable.
—One reading of “fell into the portion of the master” is that the Gerer rebbe is pointing out that the rich Hasid is rich in part because he continually collects money from his renters: he lives off them. The fact that he profits from their work and grows rich off of them imposes special responsibilities on him.
—“Half-slave, half-free,” we think, is a beautiful way of talking about what it is to be a renter in the contemporary world: you can theoretically move anywhere, but anywhere you go, the yoke of rent is on you. The market promises choice but delivers exploitation. You live in the space in between what you can earn and what you’re obliged to pay, and at the end of the year, someone else has accumulated the money you’ve spent on housing.
III. Collective Disaster: A Halakhic Framework for Cancelling Rent
The base source for thinking about rent cancellation is a Mishnah4: it’s from roughly the second century CE, and it addresses a case when an agricultural renter faces a collective disaster:
הַמְקַבֵּל שָׂדֶה מֵחֲבֵרוֹ וַאֲכָלָהּ חָגָב אוֹ נִשְׁדְּפָה,5 אִם מַכַּת מְדִינָה הִיא, מְנַכֶּה לוֹ מִן חֲכוֹרוֹ, אִם אֵינוֹ מַכַּת מְדִינָה, אֵינוֹ מְנַכֶּה לוֹ מִן חֲכוֹרוֹ. רַבִּי יְהוּדָה אוֹמֵר, אִם קִבְּלָהּ הֵימֶנּוּ בְמָעוֹת, בֵּין כָּךְ וּבֵין כָּךְ אֵינוֹ מְנַכֶּה לוֹ מֵחֲכוֹרוֹ:
(6) If one leased a field from his fellow and the locusts devoured the crop or it was blasted [by strong winds which caused the grain to be prematurely separated from the stalks], if it was a region-wide mishap he may reduce the amount of the rental agreement. If it was not a region-wide mishap, he may not reduce the amount of the rental agreement. Rabbi Judah says: “If he had leased it from him for a fixed amount of money, in neither case may he reduce the amount of the rental agreement.”
Questions:
—In the first part of the Mishnah, what is the basic ruling? When can the renter deduct, and how much? When can he not?
—Why is the landlord implicated in the tenant’s difficulty?
—What is Rabbi Judah’s opinion? What motivates it? Why doesn’t the first, anonymous voice agree with him?
—This source applies to agricultural renters. How are things different with residential renters? How are they
similar?
—What sort of economic relationships do and don’t create these sorts of obligations today?
Some takeaways from this source
—Landlords and renters enter into relationships of mutual obligation, which cannot be reduced to contractual obligations. If renters struggle collectively, that is landlords’ problem. There are numerous details of when and how to apply this ruling, but it’s important to affirm that: renting something to someone that touches on their life and livelihood is never just another contract.
—The rabbis don’t accept Rabbi Judah’s position. The subsequent authorities are clear that the law follows the anonymous first voice (the tanna kamma). Rabbi Judah’s position represents the possibility that, if the transaction is in cash rather than kind (i.e., in agriculture), the landlord is not implicated. The general rejection of that position is significant, because it indicates that the landlord remains in relationship with the tenant, even in situations when their agricultural relationship is mediated through a cash economy. Landlords frequently claim that their responsibilities to tenants are limited because they’re just engaged in a financial transaction like any other. In this case, that move is rejected.
—The Mishnah does not imagine abandoning the contract: it rules instead that the amount of rent is reduced. The renter retains the right to use the property and presumably live there, just at a reduced rate.6
Jumping to the contemporary moment, we next want to look at a responsum the Israeli Orthodox legal scholar Rabbi Asher Weiss. Rabbi Weiss is one of the pre-eminent Orthodox halakhists in the Orthodox world today. In this responsum, he addresses a case in which a young American couple left their year-long rental in Jerusalem to return to their family in the United States. We’re turning to this source next mostly because it’s a clear-cut case of applying this ruling to residential rentals.
שו׳׳ת ר׳ אשר וייס, י׳ אייר תש׳׳פ
לשאלת רבים מבני חוץ לארץ שנטשו את ביתם שבארץ ישראל וחזרו לארצות מוצאם בפרוץ מגיפת הקורונה ואין בידם לחזור ארצה, וברצונם לבטל את חוזי השכירות של הבתים ששכרו בארץ ישראל, או לפחות להפחית את סכום השכירות באופן דרסטי. בעלי הבתים לעומתם טוענים שחוזי השכירות נחתמו לתקופת שנה ואי אפשר לחזור בהן באמצע התקופה…
הרי שכל עיקר גדר מכת מדינה תלוי ברוב. נפסק כרב יהודה דכל דאישתדוף רובא דבאגא הוי מכת מדינה, עי"ש… ולכאורה היה נראה בנידון דידן דרק אם רוב בני חו"ל עזבו את הארץ אפשר לדון דין מכת מדינה ואנוכי לא ידעתי, הלא יושב אוהל אני מעודי ולא אדע אם רוב בני חו"ל חזרו לארצות פזוריהם, ובאמת פשוט שרוב שוכרי הדירות ודאי נשארו בבתיהם, אך לפי מה שנאמר לי רוב המשפחות הצעירות מבני חו"ל עזבו את הארץ וחזרו לארצות מוצאיהם, ובפרט בשכונות מסויימות שבהם רוב שוכרי הדירות הם זוגות צעירים בני חו"ל…. ומסתבר דכיון שמדובר בעיקר בשכונות מוגדרות ומסויימות , ושכונות אלה הוי כשוק בפני עצמו, וכמעט כל שוכרי הדירות בהם הם בני חו"ל, יש אכן לדון בהם בפני עצמן,...
ולא תימא דאין דין מכת מדינה אלא במקום הפסד ממון ממש כגון הני תרי מתניתא דמס' ב"מ שהחוכר יוצא נפסד, אבל מהיכי תיתי לקפח את המשכיר כאשר אין השוכר מפסיד, דבאמת כשאין השוכר יכול להנות ולעשות שימוש במושכר הרי זה כהפסד…
ועוד נחלקו הפוסקים בהנחה שאכן הוי מכת מדינה, אם יש רשות לשוכרים לדרוש הפחתה בשכר הדירה או רק לבטל הסכמי השכירות מכאן ולהבא, ואבאר... ואלה שרוצים להפחית משכר הדירה, יש הצדקה בתביעתם, כיון שאין הם דרים בתוכם ואין בידם לחזור לבתים משום מכת מדינה, אך קשה לקבוע בזה סכום התפשרות, שהרי מצד אחד עדיין חפציהם בדירה ואין בעל הדירה יכול לעשות שימוש בבית. גם אנן סהדי שגם אילו היה מפנה חפציו מן הדירה ברוב המקרים אין ביד המשכיר להשכיר את הדירה לאחרים כי דירות אלה מיועדות לבני חו"ל שכעת כולם בחו"ל.
והנה לכאורה אם יתבע השוכר להפחית את דמי השכירות יאמר המשכיר אני רוצה לבטל את הסכם השכירות ותפנה את הדירה, וכיון שהמשכיר יודע שאין השוכר יכול לעשות כן, שהרי רוב השוכרים השאירו בבית את כל החפצים האישיים, ואף אם ימצאו מי שמוכן לעשות את הפינוי וההובלה, וגם ימצאו שטחי איחסון מ"מ שום אדם לא יכניס לביתו זרים שיפנוהו כאשר כל חפציו האישיים נמצאים בבית, נמצא שהמשכיר מנצל את מצוקת השוכר כדי לאלצו לשלם את מלוא השכירות. ונראה לענ"ד דכל כהאי גוונא כופין על מדת סדום, וכיון שאין המשכיר יכול להשכיר את הבית לעת כזאת כאשר אין דורש ואין מבקש, יש להפחית את שכר הדירה כנ"ל, ואין לקבל את טענת המשכיר לבטל את ההסכם ולדרוש את פינוי השוכר… ולפיכך נראה לענ"ד שיש להתפשר על כחמישים אחוז משכר הדירה.
Responsum of Rav Asher Weiss, 5.4.2020
As to the question of many of the foreigners who fled their houses in Israel and returned to their homes in the Diaspora at the outbreak of coronavirus, and now they cannot return, and they want to annul the rental contracts of the houses they rented in Israel, or at least to reduce the rent drastically: The landlords claim that the contracts were sealed for a year, and it is impossible to withdraw from them during that period…
The ruling is... that anywhere where most of the valley is blasted is a regional disaster… obviously, most renters have certainly stayed in their homes, but according to what was told to me, most young families from abroad left Israel... particularly in certain neighborhoods where most of the renters are young couples from abroad… it’s logical that since we are speaking of defined neighborhoods, which are like a market to themselves, and nearly all of the renters are foreigners, it is appropriate to judge them on their own…
And don’t say that the law of “regional disaster” only applies in a case of actual loss of money, like the Mishnayot in Bava Metzia, in which a renter ends up losing, but that it wouldn’t apply to a landlord when the renter isn’t losing out, for in truth, when a renter is not able to benefit from and make use of the rented thing, that is like a loss.
The authorities further debate, assuming it is a “regional disaster,” whether the renters have the right to demand a reduction in the rent, or only to nullify the rental contract going forward… And those who want to reduce the rent, they have justice in their claims, since they do not live in their homes, and they cannot return because of the regional disaster, but it is difficult to fix the amount of the compromise, since their belongings are still in the apartment, and the landlord cannot make use of the apartment. Also it is a presumption of the court that if the landlord were to throw out their possessions, in the majority of cases, it would be impossible for the landlord to rent the apartment to others…
And apparently, if the renter were to demand to reduce the rent, the landlord would say, “I want to annul the contract, and you leave the apartment,” and since the landlord knows that the renter cannot do so, since most of the tenants left their personal possessions in the apartments - and even if they found someone ready to do the move-out and transport, and they found storage places, nonetheless no one wants strangers to come into their house to move them out when all their personal possessions are in the house. It would turn out that the landlord would exploit the predicament of the renter to force them to pay the full rent. And it seems to me in such a case we would compel the landlord, given his miserly behavior. And since the landlord cannot rent the apartment at the moment, since there is no demand, the rent ought to be diminished, and the claim of the landlord to nullify the contract and demand the clearing of the house cannot be accepted… and thus it seems to me they should compromise on 50% of the rent.
Questions:
—How does Rav Asher Weiss think about the majority and what defines a class of people eligible for rent-reduction? Who is rent-reduction or cancellation for? How do we know whether there is or isn’t a collective disaster?
—Why doesn’t the landlord get to throw the renters’ property into the street?
—What are the various forms of use or benefit renters get from an apartment? What is Rav Asher Weiss’s position when one can get some of them but not all of them?
Takeaways:
—Rav Asher Weiss clearly thinks that this law applies to residential rentals and not just commercial or agricultural ones.
—The case discussed is relatively mild, since the renters who fled clearly have somewhere else to live. Even still Rav Asher Weiss thinks they deserve a rent reduction. The people we are concerned with in this essay are, in many cases, in far more dire circumstances.
—It is incredibly important that Rav Asher Weiss disaggregates the benefits received in renting, since he might have said, “Ah, if their stuff is still at the apartment, then they’re still using it…” This matters to us because fundamentally, we think that low-income renters who are remaining in their apartments but can no longer access their jobs are deprived of a significant, basic benefit from their rentals. On the level of svara (common sense), the economic reason most workers rent apartments in expensive places (e.g. the Bay area, New York, Chicago, etc.) rather than cheap ones (much of the country) is because those rentals afford them access to job markets with better wages. The heightened demand for apartments in expensive places, and thus the prices renters pay, is based on the presumption of access to jobs. Part of the point, in our opinion, is that one cannot cleanly divide between “residential” and “commercial” renters, since economically, low-wage workers have to rent apartments to access jobs. And thus realistically, one ought to disaggregate the benefits such workers typically receive, and if workers cannot work en masse, to reduce the rent.
So if the first line of argument for rent cancellation or reduction (as opposed to just the option to cancel the contract) is that that seems to be the basic structure of the law in the Mishnah, then the second is that people derive multiple sorts of benefits from rentals, some of which they have lost because of covid even when they remain in the apartment.
As one example of this principle, here is a source from late eighteenth century Morocco. It comes from another application of the idea of collective disaster (worker-employer relations, rather than tenant-landlord),7 but it is relevant here because it articulates a middle-ground between thinking of the contract as null and thinking of it as fully in force:
שו"ת אבני שיש חלק א סימן נא
באשר דבר מלך שלטון והוא גזר על היהודים הפרזים היושבים בערי הפרזות ובאהלי קדר ובאהלי פלשתים שיבואו לעיר תחנותם ולא יוסיפו ללכת להסתחר עוד באותן המקומות. ובכן עלתה לפני אנקת נאקת השוכרים עם שכיריהם שהשוכרים טוענים לבטל השכירות מכאן ואילך בטענה שלא השכירו אותם אלא על דעת שיעשו מלאכתם חוצה ועכשיו שנגזר עליהם שלא לצאת והם יושבים ובטלים גם הם גם שכיריהם תתבטל השכירות מכאן ואילך, והשכירים השיבו אנו מזומנים לעבוד עבודתכם ואם נמנעה עבודתכם מזלכם גרם… ואחר המשא ומתן בדין זה פסקתי ביניהם שהדין עם השכירים ולא מצו השוכרים לחזור לבטל השכירות דפסידא דבע"ה היא זאת והשכירות קיימת עד זמן שקבעו...
איברא דבבואם לפרעון בהיכא דהשכירים יושבים ובטלים לגמרי אית לן למימר דלא יטלו כל שכרם אלא כפועל בטל
Responsa Avnei Shayish 1:51 (Hakham Shaul Yeshuah Abitbul, 1739-1809)
The king decreed on the Jews of the villages, who dwell in the unwalled towns and the tents of Kedar and the tents of the Philistines, that they should come to the city of their dwelling and should not continue to travel as merchants in those places. And thus there arose before me the incredible moaning of the employers with their employees. For the employers sue to nullify the contract going forward, based on the argument that they had only employed them with the intention that they do their work outside [their home city], and now that it was decreed on them that they not leave, and both they and their employees were sitting idle let the contract be nullified going forward. And the employees replied, “We are ready to do your work, and if your work is impeded, it’s your bad luck that caused it.” …
… And after deliberation in this matter, I ruled with the employees, i.e. that the employers weren’t permitted to go back and nullify the contract, for the loss in such a case is the employer’s, and the contract should continue until the fixed time…
[After considering another court’s ruling that they could nullify the contract, which Hakham Abitbul rejects, he concludes:] Nevertheless, when they come to collect, in a case where the workers sit completely idly, we should say that they should not collect all their wage, rather only like an “idle worker."8
Questions:
—Why does Hakham Abitbul back off of his original position? Why don’t the workers get their full wage?
Takeaways:
We are suggesting, in essence, that renters might owe, so to speak, the rent for an “idle apartment,” to re-purpose, somewhat playfully, the language of Hakham Abitbul. That is, while the rental contracts remain in force, to the extent that the renter cannot get economic value out of their apartment in the ordinary way (because disease and consequent government ruling have confined him in something like the way they did the Jews in Hakham Abitbul’s case), the rental-value of that apartment to the renter has surely dropped considerably, and it cannot be appropriate for them to pay full price.
There are two more points to be made. First of all, as the story about the Gerer rebbe suggests (though in a homiletical, rather than legal, key), it is not clear that a landlord should or can evict a tenant for non-payment of rent! Whether the landlord has that right is in fact a dispute among halakhic decisors.9 Here are two related sources articulating the negative position.To be clear, it would be irresponsible to introduce these as the law on their own terms: the weight of consensus is on the other side. But they add a layer of doubt (technically, a safeik) to the landlord’s claim that if the tenant doesn’t pay, they must leave. And they do so because they suggest that it is not so clear how to relate rent payments to the right to live in a place:
חידושי הריטב"א מסכת כתובות דף לד עמוד ב
הרי זה כאילו שכר אביהם בית ומת שמשתמשין בו כל ימי שכירותו ואין חייבין בשכירותו אם לא הניח להם אביהם אחריות נכסים.
Novellae of the Ritva (Yom Tov ben Avraham Asevilli, Seville 1260-1330), Tractate Ketubot 32b
[Another case under discussion] is comparable to a case in which the father rented a house and died, in which case the inheritors use it for the entirety of his rental and are not obligated in the rent, since the father does not leave to them the financial responsibility for his possessions.
To quote Rabbi Baruch Meir Levin, author of Landlord-Tenant Halacha: “And according to the Ritva, apparently it would turn out that the same rule would apply to a renter who does not pay, that the landlord would not be able to evict him from the house and would only be able to continue to strive to receive the rental payment” (83n140).
גליון הגר"א בשו"ע חו"מ סי' שמ"א ס"ג
שוכר שמת אם היורשים רוצים להשתמש בה, נלע"ד דאף בלא הניח להם אביהם נכסים צריכים לשלם השכירות משלהם אף דאין להם זכות יותר מאביהם, מ"מ כיון דאביהם לא היה לו זכות שימוש בחינם ה"נ אין להם זכות שמוש בחינם.
ומ"מ אפשר לומר דאביהם מיד ששכר נעשה בע"ח על דמיו וזכה בשמוש ויכולים היורשים לומר אבינו אנו יורשים זכות השמוש וחובו אין משלמים. ודמי לקנה מטלטלין ולא נתן דמיהם ומת דיורשים זוכים בהמטלטלים וחובו אין משלמים ה"נ שכירות ליומא ממכר הוא. ויש ללמוד כן מד' תשו' הרשב"א כו' אח"ז רב מצאתי בריטב"א פ"ג דכתובות דכ' להדיא דשכר אביהם ומת דמשתמשים כל ימי השכירות ואין חייבים לשלם השכירות אם לא הניח להם אחריות נכסים כו' ע"כ".
Gilyon haGR"A (Elijah ben Solomon Zalman, Vilna 170-1797) on SA CM 341:3
One who rents and dies, if the renters want to use it, it seems to me that even if the father didn’t leave them possessions, they need to pay the rent from their own… since their father did not have the right of use for free, so too they don’t.
Nonetheless, it is possible to say that immediately when their father rented, he took on a monetary debt, and he acquired the usage-right. And the inheritors can say, “Our father died, and we inherit the usage-right, but we won’t pay his debt.” And it’s like one who bought moveable objects and didn’t give the money; the heirs get the objects but don’t pay the debt. Here too temporary rental is like a purchase…
Questions:
—How can it possibly be that one can live in an apartment belonging to someone else for free? Doesn’t that violate a core intuition we have about property?
—How exactly are the Vilna Gaon (i.e. the GR"A) and perhaps the Ritva understanding a rental? What might the consequences be for our case?
Takeaways:
—The Vilna Gaon, in his second analysis, suggests that a rental contract may not be a repeated exchange of fee for service, such that missing a month’s rent means logically you don’t get that month of usage. Rather it’s an up-front exchange of two things: you obligate yourself financially, and then secondarily, you acquire the right to live somewhere. If so, logically, when, for one reason or another, something comes along and eliminates (or modifies) that financial obligation (twelve months of rent, say), nothing follows about your right to remain in the rental.
—In American law, there is a parallel distinction between debt that is evictable and consumer debt. That is, if you happen, independently, to owe your landlord money (say you bought a car from them and never paid), that is typically not evictable. (Note: we are not lawyers, and this is not legal advice.) The point the GR"A is making is that it is not so clear that Jewish law regards rental payments as evictable. You may owe the landlord money, and they can take you to a court and claim it. But they cannot necessarily evict you.
—As a matter of practical halakhah, the practice is not to rule like these opinions in the usual case of the defaulting tenant. But in this case, the GR"A and Ritva provide another axis of doubt, which detaches the question of whether the tenant pays from whether they can remain in the apartment. That is, the Ritva would seem to say: “If collective disaster reduces the rent, that has no bearing on whether the tenant can stay in the apartment, a right they acquired when they signed their rental contract.”
Important note about month-to-month rentals' limits on eviction
There is a catch to this line of argument: the GR"A here would help yearly renters, but not month-to-month renters. But here it is notable that halakhah treats many month-to-month rental contracts as if they were really twelve-month contracts. For instance, take this communal decree from Meknes, Morocco:
תקנות חכמי מכנאס, תקנה י"ד, 1
הסכמנו ותקננו, שמי שישכור דירה מהיום הזה והלאה לא יוכל בעל הדירה לגרשו ממנה עד תום שנה תמימה, המתחילה בראש חדש אייר וגומרת בראש חודש אייר הבא אחריו, ולא יוכל לגרשו כלל במשך הזמן הזה. ולא יעלה לו בדמי השכירות, והעלאת דמי השכירות לא תהיה אלא בראש חודש אייר דווקא. ולמרות שיתנה עמו שאין השכירות חלה רק למשך שישה חדשים אין לו הזכות לגרשו מן הדירה מבלי רצונו רק בראש חודש אייר, ותקנה זו תהיה נוהגת בינינו לדורות עולם.
Rulings of Meknes Rabbis, Ruling 14, 1 (in Rabbi Professor Moshe Amar, Sefer Takanot, the Sages of Meknes, Morocco: 1996)
We have agreed, and set forth a ruling, that whoever rents an apartment from this day onward, the owner shall not be able to make the renter leave it for a whole year. The year will start in the month of Iyar, and end in the month of Iyar, and the owner will not be able to make this person leave at all throughout this time. And the owner shall not increase the amount of rent due, and the only time that the amount could be raised is in the month of Iyar specifically. And even if the owner should make an agreement with the person renting the apartment to let him live there for six months, the owner still does not have the right to make him leave without his will before the month of Iyar. And we shall keep this ruling as our custom here for all generations to come.
Question:
Why did the Moroccan community of Meknes make this decree? What constraints was it placing on landlords?
Takeaways:
—The Meknes decree, which stipulates that even a month-to-month contract gives the renter the protections of a twelve-month contract, is based on a Talmudic ruling (mBava Metzia 8:6) codified by Maimonides Mishneh Torah, Hilkhot S’khirut 6:7. Apparently the principle of requiring twelve months of notice before eviction is still upheld in Brooklyn rabbinical courts: see Sefer Mishpat Shai 5:37, cited in Levin 209n330.
—The essential point here is that Jewish law places constraints on the landlord’s right to evict, and these sources fundamentally do not accept a situation in which a tenant can be evicted at a moment’s notice. All tenants, whether in Meknes or Brooklyn, deserve the security of knowing that they cannot be pushed out at the end of any thirty-day interval.
Let’s return to the question, “Why can renters stay in their apartments if they’re not paying?” The second key point is that while rabbinic sources assume that one would—in fact perhaps should or must—flee before a plague, in our world, public-health experts are virtually unanimous that what is needed is for everyone to stay in their homes. This makes having a home far more important, of course, and it makes eviction far scarier for tenants. But on the other hand, it also means that rabbinic sources that imagine a collective disaster triggering a cancellation of the rental contract were always assuming the renter would have wanted to flee the plague, which isn’t true for us. Here is a source that fleshes that point out:
מגן אברהם סימן תקעו
כשאבעבועות פורחי' בתינוקות ומתים יש לגזור תעני' וכבר חבר הגאון מוהר"ר משה סליחה ע"ז ובשל"ה כ' דכל אחד יבריח בניו מן העיר בעת הזאת ואם לא עשו זאת הן חייבין בנפשותם:
Magen Avraham (Avraham Gombiner, Poland 1635-1682) on SA OC 576
When the pox spreads among children and they die, a fast should be decreed… and in the Shlah it is written that everyone should evacuate his children from the city at this time, and if they do not do so, they are guilty for their lives.
Obviously, evacuating and moving around would not be appropriate in our context—nor would the Magen Avraham advocate such behavior, God forbid! But the point is, one encounters frequently in the literature on collective disaster the assumption that one would flee a plague.10
On the other hand, there is a relatively clear rabbinic source advocating staying in your house during a plague.10a
תלמוד בבלי ב׳׳ק ס.–ס:
תאני רב יוסף מאי דכתיב (שמות יב, כב) ואתם לא תצאו איש מפתח ביתו עד בקר כיון שניתן רשות למשחית אינו מבחין בין צדיקים לרשעים… ת"ר דבר בעיר כנס רגליך שנאמר ואתם לא תצאו איש מפתח ביתו עד בקר ואומר (ישעיהו כו, כ) לך עמי בא בחדריך וסגור דלתיך בעדך ואומר (דברים לב, כה) מחוץ תשכל חרב ומחדרים אימה
Talmud Bavli, Bava Kamma 60a-60b
Rav Yosef taught a baraita: What is the meaning of that which is written [with regard to the plague of the firstborn]: “And none of you shall go out of the opening of his house until the morning” (Exodus 12:22)? Once permission is granted to the destroyer to kill, it does not distinguish between the righteous and the wicked…. The Sages taught: If there is plague in the city, gather your feet, as it is stated in the verse: “And none of you shall go out of the opening of his house until the morning.” And it says in another verse: “Come, my people, enter into your chambers, and shut your doors behind you; hide yourself for a little moment, until the anger has passed by” (Isaiah 26:20). And it says: “Outside the sword will bereave, and in the chambers terror” (Deuteronomy 32:25).
Question:
What follows from the difference in circumstances today, such that fleeing is not only not the desired option, but may be illegal or unethical, and is certainly unwise?
Takeaways:
—Fundamentally, the Gemara in Bava Kamma is surely right that, in response to this pandemic, we have an obligation to stay in our homes as much as possible. Consequently, society has an obligation to make sure we can stay in our homes—eviction or relocation in the time of a pandemic are thus terrible policy options.
—Thus, cancellation of the rental contract becomes a far less attractive option for the tenant (and for the society!). Thus, given the ambiguity that exists in the sources between options involving cancelling the contract and those which involve adjusting the rent, we think sources like the Magen Avraham—and more basically, Torah obligations to preserve one’s own life and health as well as that of others—push us toward thinking that cancellation or reduction of rent seems more practical and in keeping with the tradition.
—Second, we think that one has to read earlier sources with the Shlah and the Magen Avraham’s assumption in mind (since it’s not just theirs—it’s all over the literature). This means reckoning with the fact that the legal authorities in those cases are assuming people want and need to flee and not playing out the dynamics of “what if they remain?” An important reason cancelling the contract—and not modifying the rent—becomes a preferred solution is that renters flee plagues.
IV. How Do We Rebuild?
Our learning began with the idea of the renter being caught in between two realities: half-free and half-enslaved. We wanted to end this learning with a reminder about the work we are obligated to do, so that everyone, everywhere is housed and safe. The COVID-19 pandemic, compounded with the already serious housing crisis, has put renters in a situation where they fear eviction and homelessness.
This poem by Erez Bitton, Israel’s “founding father” of Mizrachi Poetry, describes a home that is envisioned from within the ruins. The father remains at the threshold of this imagined house but the son is compelled to continue to build scaffolding:
פיגומים
ארז ביטון
עַל סַף חֲצִי בַּיּתִ
בְּאֶרֶץ ישְִׂרָאֵל
עָמַד אָבִי
מַצְבִּיעַ לַצְּדָדִים
ואְוֹמֵר:
בַּהֲרִיסוֹת הָאֵלֶּה
נִבְנֶה פַּעַם מִטְבָּח
לְבַשֵּׁל בּוֹ זנְַב לִויְתָָן
ושְּוֹר הַבָּר,
וּבַהֲרִיסוֹת הָאֵלֶּה
נָקִים פִּנַּת תְּפִלָּה
לִמְצֹא מָקוֹם
לְמִקְדָּשׁ מְעַט.
אָבִי נִשְׁאָר בַּסַּף
ואֲַנִי כּל ימַָי
מַצִּיב פִּגּוּמִים
אֶל לֵב הַשָּׁמַיּםִ.
Scaffolding
Erez Bitton
On the threshold of half a house in the Land of Israel
my father stood
pointing to the sides and saying:
Upon these ruins
one day we will build a kitchen
to cook in it a Leviathan’s tail
and a wild bull,
upon these ruins
we will build a corner for prayer
to make room
for a bit of holiness.
My father remained on the threshold
and I, my entire life,
have been erecting scaffolding
reaching up to the sky.
Questions:
-What kind of home is imagined in this poem? What components make up this home?
-What roles do the father and son play in erecting this home?
-In what role do you see yourself in the fight for affordable housing? How has this learning informed your opinions and ideas about rent cancellation in this time of crisis?
We hope that this learning has provided some scaffolding for thinking about the issue of rent reduction and cancellation during the COVID crisis. As we move forward from this threshold, we encourage learners to look for ways to make a difference in this fight so that all people have the security of a roof over their heads. To learn more about rental laws, policies and proposed bills in your community and to get involved, please visit the websites below to see how you can help:
The National Low Income Housing Initiative
ACCE-The Alliance of Californians for Community Empowerment
Emergency Rent and Mortgage Cancellation Legislation/ Ilhan Omar (MN)
Guidelines:
—Renters are an unprotected, exploited population: As the Gerer Rebbe indicated, seeing renters as half-slave/half free is an important prism through which to think about our question of what to do about rent during this crisis. We have the responsibility to empathize and understand the precarious situation renters are in and fight to change this unjust situation. We support the passage of laws that decrease or cancel rent for renters during and after this crisis. We don’t want renters to come out the other end of the pandemic with large amounts of debt. We want communities to see renters and hear their voices. Patricia Mendoza is not alone.
—Landlords are not necessarily entitled to their full monthly rents. Rent reduction, for the sources we saw above, is a right renters have. While we certainly think that it's important to avoid evictions, and Jewish law lands where it does in part because of the ethical instincts that animate the Gerer Rebbe, it's important to note that the case we are making is that a major portion of the residential (and commercial) rents currently due according to American law do not morally belong to the landlords, they belong to the renters. If this is so, then the halakhic principle of "One who comes to take from someone else bears the burden of proof" (B. Talmud Bava Kamma 46n) indicates that tenants have a prima facie (i.e., presumptive) claim not to pay rent. Of course, the details of the policy are complex, and we certainly support some rental support for those landlords who are in genuine need and are deserving. The details of how to structure that policy are beyond the purview of this document. But the fundamental point is: according to Jewish sources, rent cancellation is a matter of rights.
—Laws can and should protect renters: Jewish law places constraints on the landlord’s right to evict, and the sources we have explored indicate this by showing that a situation in which a tenant can be evicted at a moment’s notice is unacceptable. All tenants deserve the security of knowing that they cannot be pushed out at the end of any thirty-day interval. While the legislation signed into law in California by Gavin Newsom addresses the issue of current eviction for people that cannot pay their rent, we believe that protections need to be added so that renters and small landlords don’t accrue large amounts of debt on the other end of this crisis.
—How can I take action? We want macro change for this housing crisis. We want lawmakers, communities and local, state and federal governments to recognize that housing as a basic human right and to make housing affordable for all. If you live in a community that has enacted moratoriums on evictions, continue to support organizations that advocate for affordable housing and tenant rights. If you live in a community where this is not the case and you know of people who are struggling to pay their rent, consider giving tzedakah in this situation by supporting individuals you know or organizations like the COVID-19 Eviction Defense Project.
—Finally, we must have a larger, longer-term collective conversation about housing, one that builds on the insights of, for instance, Erez Bitton's poem—and consequently recognizes that, while a home is a sacred, longed-for place, our society and economy have not done a good job ensuring everyone good, stable, affordable housing. The acute crisis of the pandemic, we suggest, has revealed the fundamental crisis of our housing system—a crisis measurable in the statistics in our introduction and felt in the pain of individual renters.
Footnotes
1 We would like to thank, for their advice and expertise, our consultants: Rabbi Aviva Richman, Tony Roshan Samara, Julie Gilgoff, and Rabbi Aryeh Cohen. We would also like to thank T’ruah for supporting this project, and particularly Shani Rosenbaum, for her skillful, wise management. Raffi would also like to thank Leslie Gordon, who has taught him a great deal about renters and many other things, and a group of friends (Hannah, Avi, Carissa, and Noam) with whom he learned some of these sources. Tamar would like to thank Haya Ne’eman, HaRav Isaac Chouraqui and Eli Bareket from Kol Yisrael Chaverim in Israel. Obviously our errors are ours alone.
2 One framework for how to think about this usage would be Drashot haRan #11.
3 As a preliminary example, it’s striking that when San Jose considered cancelling rent, the city attorney ruled immediately that such cancellation would be an unconstitutional violation of property rights. Of course, as the Law Foundation of Silicon Valley argues, that challenge may well be wrong about American law—we hope so! But note that it wouldn’t even really get off the ground in Jewish law, which has never held private-property rights to be a sacred meta-principle.
4 The term “collective disaster” (makkat medinah) also appears in mBava Kamma 10:5 and tBava Batra 6:11 (Lieberman), though neither is particularly relevant for our case. Our Mishnah’s basic ruling is codified, with some modifications as discussed in the Gemara ad loc, in Mishnah Torah Hilkhot Skhirut 8:5 and Shulkhan Arukh Hoshen Mishpat 321.
5 The Venice edition of the Yerusalmi here reads נשרפה (“burnt”). Obviously the ד and ר are easily confusable, and lex difficilior —the rule of reading manuscripts according to which smoother readings are often later emendations, and harder readings are thus often earlier— suggests that the less common נִשְׁדְּפָה is likely correct.
6 There is some argument about this in the later sources (see especially the Shu''t Maharam Padua #39, who rules that deduction is only retrospective, an opinion brought but rejected by the Rema in Hoshen Mishpat 321). The simple reading would be that the Mishnah is talking about both the rent that’s already been paid and future rent. (Or alternatively, it is imagining agricultural rent paid as a lump sum at the end of the season. The commentators generally insist that the Mishnah is talking about a rent that is fixed and not a percentage of the crop—see, for instance, the Tiferet Yisrael (Yakhin) ad loc, as well as the Maggid Mishnah on Hilkhot Skhirut 8:5. This follows from Rav Papa’s statement on bBM 105b and Rashi’s comment there, though it does strain the simple sense of “m’kabel” in the mishnah, and the wording of Rambam’s Perush haMishnayot ad loc is ambiguous.)
7 There is a sizeable body of material on this question, much of it springing from a Mordekhai on Perek HaOmnin (Mordekhai on Bava Metzia, 343) which states that, in a case where a teacher is prevented from teaching because of a collective disaster, the loss falls on the employer (in this case the father) and not the employee (the teacher). A great amount of ink has been spilled on the apparent contradiction between this Mordekhai and our Mishnah: since formally speaking, an employer rents an employee’s labor, one might analogize the employer to the renter in the Mishnah and the employee to the landlord. See e.g. the dispute recorded in the Rema to SA HM 321:1, pitting the Maharam Padua (#39) against the Mordekhai. There is a tangled history of this analogy which extends beyond our purposes here, but we do think it important to note the argument of the Levush Ir Shushan (quoted in the responsa of Rabeinu Hayyim Cohen HM 19) that there is no conflict between the Mordekhai and the Mishnah, because the employer is analogous to the landlord and the teacher to the renter. (The child, in this analogy, becomes the field.) The Levush Ir Shushan is surely right that the Mordekhai would not have meant to contradict the Mishnah, and he also gives a powerful account of how to understand responsibility in a case of collective disaster as falling on the structurally advantaged party, rather than as being decided formalistically based on who is the payer and who the payee. We stress this point because otherwise, analogies between renter-landlord and worker-employer cases of collective disaster may seem to imply a trade-off between renters’ rights and worker’s—a tradeoff evident in many of the responsa, but one which we think Rabeinu Hayyim Cohen helps dispel.
8 The concept of the idle worker is a complex Talmudic concept in its own right: see Bavli Bava Metzia 68b and the three-way dispute between Rashi, Tosafot, and Rabeinu Chananel there.
9 To see the opinions on the other side, see Levin, 83-84n140.
10 See for instance the Shu’’t Maharam Padua #86, which insists that whether a plague is a collective disaster can be determined by how many people fled it.
10a In private communication, Rabbi Elli Fischer wrote us the following very helpful summary of some of the history of this point: “I would add here that R. Asher Weiss, by questioning the practice of fleeing COVID-19 (since the beginning of the outbreak… has counseled the literal application of Bava Kamma 60a-b, which was never before observed in practice - see the forthcoming article: Moshe Dovid Chechick and Tamara Morsel Eisenberg, “Plague, Practice, and Prescriptive Text: Jewish Traditions on Fleeing Afflicted Cities in Early Modern Ashkenaz,” Journal of Law, Religion, and State)... Late medieval and early modern Sephardic halakhists never flagged the practice of fleeing as problematic or raised the problem that Bava Kamma 60a-b presents for that practice. See: Beit Yosef, Ḥoshen Mishpat §344; Responsa Nivḥar Mi-Kesef, Even Ha-Ezer 63; Responsa Ḥut Ha-Meshulash (Tashbetz) 4:3:23; Responsa Yakhin U-Bo’az 2:53; Responsa Maharitatz §§44 and 51.”