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.”
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: