Rabbi Dayan was reviewing his e-mail. Occasionally, he received comments from readers about articles he had written in Business Weekly.
One article, “Shabbos Rental,” received a flurry of comments, all objecting to the ruling for various reasons. The article dealt with someone who rented the shul’s function hall for a bar mitzvah on Shabbos and used it also for a melaveh malka. He claimed afterward that the rental included motzaei Shabbos, whereas the shul gabbai claimed the rental covered only Shabbos.
Rabbi Dayan had ruled that the shul had the upper hand in the dispute and the renter had to pay additionally for motzaei Shabbos, since real estate is always considered in possession of its owner in situations of doubt. (C.M. 312:15-16)
Several people objected to the ruling based on the Shach (C.M. 312:14; 317:5), who maintains that this principle applies only when the renter has a doubtful claim (she’ma), such as the extra month in a leap year. However, if the renter has a definitive claim (ba’ree), as in our case, he is in possession since he holds the money.
One reader added, rhetorically: “If the landlord claimed the rental fee owed is $5,000 and the tenant claimed $100, would the landlord be believed?”
“These are learned objections,” Rabbi Dayan thought. “They require elucidation.” He took out his Shulchan Aruch and other sefarim and examined the case once more. After researching the topic, he replied to the readers:
“There is a difference between a disagreement about the amount of the rental and one about the length of the rental. In truth, the Mordechai (B.M. #387), alluded to by the Rama (317:2), seems to rule that even regarding the sum the landlord has the upper hand. However, the consensus of the achronim is that regarding a dispute over the sum, whoever is in possession of the money has the upper hand. The principle that real estate remains in the possession of its owner does not apply here, since the dispute does not relate at all to the usage, but only to the payment. Therefore, as with any other monetary dispute, the rule of hamotzi meichaveiro (the plaintiff has the burden of proof) applies simply.” (Machaneh Ephraim, Hil. Sechirus #21; Pischei Choshen, Sechirus 5:)
“Now, let’s consider the other extreme,” continued Rabbi Dayan. “Imagine that you use your neighbor’s rental property, and afterward a dispute arises. You claim your neighbor allowed you to use it for free, whereas he claims you used his rental property without permission and owe the standard rental fee. Is it not clear that you must pay? Here, we certainly should apply the rule that real estate remains in possession of its owner. The dispute is clearly focused on the right of usage.
“Similarly, if both parties agree about the amount of the rental, but dispute the length; one claims four days and one claims five. In principle, the landlord is believed when the facts cannot be proven (see C.M. 317:3; Shach 317:11).”
“This was the case in the article,” concluded Rabbi Dayan. “The dispute was whether the hall was rented for motzaei Shabbos. The renter claimed the rental included motzaei Shabbos, whereas the gabbai claimed they had rented only for Shabbos. Thus, the rule that real estate remains in possession of its owner applies here. There is more to delve into on this issue, but it is beyond the scope of this column.”
Nonetheless, the ruling was in error, based on another concept that some readers raised, that of migo. Since payment for the hall was already due and the renter’s claim that he paid was believed, he is also believed when he makes a definite claim that the rental included motzaei Shabbos. The Rama and Shach address the point of migo as well, but to explain this concept and its application requires another article.