Mr. Brenner was renovating his house and also adding a small rental unit to provide income. He mentioned his plans to his neighbor Mr. Mann.
“My son recently got engaged,” said Mr. Mann. “He’s looking for a small unit in the neighborhood, which is almost impossible to find in the middle of the year. Would you be willing to rent them your unit?”
“It will take two to three months to build,” said Mr. Brenner.
“That’s perfect,” Mr. Mann said. “Baruch Hashem, they’re getting married in three months. I’m willing to sign a contract now; I’d like to know that it’s settled.”
The two drafted a rental contract, stating that when the rental unit was ready for occupancy, Mr. Mann’s son would rent for the year at $500 a month.
A week before the wedding, Mr. Mann asked whether the unit was ready.
“It is,” Mr. Brenner answered. “However, it cost more to build than initially expected. I’m going to have to charge $600 a month.”
“But we already signed a contract for $500,” said Mr. Mann.
“That contract was signed before the unit was built,” replied Mr. Brenner. “It’s not binding.”
“What’s the difference whether the unit was built or not?” asked Mr. Mann. “A contract is a contract!”
“How can it be binding before the unit existed?” said Mr. Brenner. “I set the price based on what I expected it would cost. As you see, things changed.”
“I can’t accept that,” said Mr. Mann. “If you are not willing to honor the contract, we need to take up the issue in beis din.”
“I’m willing to do that,” agreed Mr. Brenner. “We can adjudicate before Rabbi Dayan.”
The two came before Rabbi Dayan and presented the story. “Is the contract for $500 binding?” asked Mr. Mann.
“The contract is binding,” answered Rabbi Dayan, “although not simple.”
“What is the issue?” asked Mr. Mann.
“Halacha limits the ability to sell something that is not yet existent, davar shelo ba la’olam,” replied Rabbi Dayan. “Shulchan Aruch further writes that whoever can sell, can rent; whoever cannot sell, cannot rent. Thus, seemingly, just as one cannot sell something nonexistent, one cannot rent something nonexistent.” (C.M. 209:4; 315:2)
“Then why is the contract binding?” asked Mr. Brenner.
“First, the contract states that the rental should commence when the house is complete,” replied Rabbi Dayan. “Rama [C.M. 209:4] cites two opinions about one who sells something nonexistent, but explicitly states that the sale should take effect when it becomes existent. However, Taz and Gra rule like the opinion that even so the sale is not binding.” (See Pischei Choshen, Sechirus 4:6[13].)
“Second, Nesivos [315:1] maintains there is a difference between sale and rental regarding something nonexistent, against the simple understanding of the Shulchan Aruch,” replied Rabbi Dayan. “He writes that rental always relates to future usage and entails a commitment incumbent on the person to provide the rental item, unlike a sale, which focuses on the item.”
“For example,” continued Rabbi Dayan, if a person rents out an unspecified animal [chamor stam] and it dies, he is responsible for a replacement, even if he did not have another animal at the time of rental” [C.M. 310:1]. “Nesivos suggests that a person might even be able to rent out something specific [chamor zeh] when it comes to his possession. However, he writes elsewhere [192:6] that only when the initial item is existent does the commitment extend to something nonexistent.”
“Third, and most important,” concluded Rabbi Dayan, “nowadays the common practice is to sell also items not yet existent through contracts; many authorities include this in kinyan situmta. For example, people often purchase houses from contractors before they are built. Similarly, the common practice would allow rental of unbuilt dwelling units on this basis.” (Chasam Sofer C.M. 62:2; Pischei Teshuvah 201:2)