Sunday, December 04, 2005

Tefisas Yad — Eruvin 66a

Tefisas Yad — Eruvin 66a

תלמוד בבלי מסכת עירובין דף סו/א

יפה עשיתם ששכרתם

Rabbi Yochanan tells the three Amoraim who came to an inn that they were correct in renting the right to carry from the innkeeper — so long as he had the right to evict the tenant (see above, 65b).

From The Contemporary Eruv:

The Rashba (Avodas HaKodesh, 4:3) writes:

When a non-Jew rents his property to another non-Jew, if the owner retains the right to remove the tenant whenever he wants, then sechiras reshus may be done from the owner - even if he has not removed the tenant yet. [There are two reasons why this is the Halacha,] because the sechiras reshus is itself a form of removal, and because [under such circumstances] the owner is the primary authority. If, however, the owner cannot remove the tenant, then the sechiras reshus must contracted with the tenant. It seems to me that if, however, the owner has some control over the property he has rented to the tenant, such as objects stored on that property, or even just the right to place objects on the property, then one may even rent the right to carry from the owner, who is then no worse than the employee or agent of the tenant.

The ruling of the Rashba is codified as accepted practice in the Shulchan Aruch (382:18,19. See the Mishna Berura there, se’ifim ketanim 60-64 and se’ifim ketanim 75-77). Control of an owner over property through the placement of objects is known as “tefisas yad” (literally: under the control of one’s hand).

Based on the principles that we find in these passages in the Avodas HaKodesh, Rabbi Moshe Feinstein rules that whenever a landlord owns objects in the tenants' apartments that the tenants may not remove without permission (refrigerators, stoves, etc.), one may contract the requisite sechiras reshus with the landlord, and does not have to approach each individual tenant (Igros Moshe, Orach Chaim 1:141). This, in Reb Moshe's opinion, is true even if the tenant has rented the right to use the objects in question. The basis of this ruling, as the Rashba explained, is that through the ownership of the objects in each tenant’s apartment, the owner retains some authority over the rented apartments. This enables the landlord to contract an umbrella sechiras reshus for all the properties that the landlord owns.

We should note that other Poskim, most notably the Kovner Rav, Dvar Avraham 3:30 (who is not sure whether objects rented to the tenant still manifest the owner's control), the Chazon Ish, ibid., siman 92 (who assumes without question that rented objects do not manifest the owner's control), and the Chelkas Ya'akov 1:207 are not in agreement with Reb Moshe on this point. In fact, in reaching his conclusion, Reb Moshe differs with a Mishna Berura. Nevertheless, Reb Moshe's logic and evidence in this regard are very strong. Reb Moshe writes that objects of the types provided by the landlord to the tenant in our times are not completely at the disposal of the tenant. The tenant, for example, is not free to remove those objects from the premises without permission. Such restrictions that manifest the landlord's control constitute proper tefisas yad. It is possible that the Chazon Ish would accept this approach as well. The case discussed by the Chazon Ish is one in which the tenants may have had the right to reject and remove the objects in question.

No comments:

Post a Comment