Lesson # 263 (part one) •Laws of the Lessee

Beginning with this lesson and continuing for several more lessons, the laws of the lessee are discussed. A lessee (tenant) is one who rents property, personal property or real estate from the owner (landlord). As seen in previous lessons, there are four classes of bailees (1) the borrower; (2) the lessee; (3) the paid bailee; and (4) the unpaid bailee. However, there are only three sets of laws regarding some of the aspects of liability; the paid bailee and the lessee are to a great extent governed by the same laws regarding their liability for negligence, loss, or theft of the object. The fundamental difference between a paid bailee and the lessee is that the paid bailee must not use the object, while the lessee rents the object for use.

The lessee:
(1) is liable for any loss, damage, destruction, or any other non return of the object as it was delivered to him, if it was due to his negligence. (This is close to destroying the object willfully; for which he is liable, since the owner is relying upon him for the normal protection of the object.)
(2) is liable if the object was lost by him or if it was stolen from him. (This holds true even if he guarded the object in a normal manner and was not negligent.)
(3) is not liable for the non return of the object if it was lost through force majeure (circumstances way beyond his control).
(4) is not liable for its non return if the object "dies" while he uses the object in the manner in which lessees use that particular rented object. (The purpose of renting the object was to use it.)
(5) is not liable to the owner for not returning the object to him if the owner was working for the lessee (even in an unrelated job) when the lessee took possession of the object. This is true even if the owner was not working for the lessee at the actual time when the object was lost even by the negligence of the lessee. However, the lessee is liable if he intentionally loses, damages, or destroys the object.

There is a case that has been included in the major codes since the 13th century: The owner rented a house to the lessee. The lessee placed wheat in the house, and when the wheat remained there for several days the walls were damaged. The owner requested that Beth Din issue a warning to the lessee to remove the wheat since it was damaging the walls. Beth Din issued the warning and he failed to do so. Thereafter the walls collapsed, causing damage to the owner and to the immediate neighbor. It was held that the lessee was liable for all of the damages including damage to the underlying land. It was more than negligence; it was as if he caused the damage with his own hands.

The lessee rents a car from the owner and the car is damaged through the negligence of the lessee. The damage can be repaired in a few days' work. The only monetary damages incurred by the owner is that he cannot rent the car to any other lessee until the car is repaired. There is a holding that the lessee is not liable for the damages suffered by the owner for such loss of income; there is also a contrary holding that the lessee is responsible. The halacha seems to follow the former holding. There is an opinion that the former holding applies only if the damage first became apparent after the lessee returned the car to the owner. However, if the damage was manifest prior to the return of the car to the owner, the lessee is liable for the loss of rental income to the owner. For example, the rental is for the month of January. The car is damaged by the negligence of the lessee during January, and the car is returned to the owner and cannot be used during the first week of February. The lessee must pay for another week's rent since what occurred was the equivalent of returning the car at the end of the first week of February. The lessee also has to pay for the repair of the car.

The owner may not rent out an automobile if it has been driven an extraordinary amount of miles without having been serviced.

Either the owner or the lessee can terminate the proposed relationship before the lessee performs an act that constitutes the beginning of the rental relationship. It would be the type of act that he would perform to acquire the property by purchase. There is an opinion that although the lessee may terminate the proposed relationship before he performs such an act, he is responsible for the theft or loss of the object if the owner, with the consent of the lessee leaves the object with him and departs.

The lessee is not permitted to entrust the rented object to a third person without the express consent of the owner. If he does, and the third person loses, damages, or destroys the object or is unable to return it because it was stolen or even as a result of force majeure, the lessee is liable to the owner. For example, the lessee loans the object, such as a car, to a third person (borrower). The car is damaged when it is struck by lightning while parked in front of the house of the third person. (I have used “struck by lightening” as an example of force majeure.)

A borrower is liable for any type of loss, except if the loss occurs when the borrower uses the borrowed object for the purpose for which it was borrowed. For example, if the borrower borrows a cow to pull a plow and the cow dies while pulling a plow the borrower is not liable; if the cow dies while walking, the borrower is liable.

If the owner gives permission to the lessee to lend the car to a third party then the lessee has the same liabilities that he had absent the loan of the car to the borrower. That is, the lessee will have to prove that the car was damaged as a result of force majeure and not because of his negligence or that of the borrower, or because the loss or theft while in his custody or that of the borrower. A lessee is liable if the object was negligently damaged or lost as a result of loss or theft and it does not matter in whose custody such losses occurred, in the lessee or the borrower, even with the permission of the owner.

The subject matter of this lesson is more fully discussed in volume IX chapters 307 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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