The Rollover Contract: A Comparative View

June 1, 2010 by Abraham Neuhaus

The rollover contract is an essential tool for those engaged in an employer-employee relationship, as it creates a default agreement which in turn places the onus of negotiation upon those who wish to alter its paradigm.  Similarly, landlords and tenants rely on the rollover contract and its useful default practicability.  Under most legal systems, including the American common law, public policy concerns have influenced the application of the rollover doctrine in various legal relationships.  Thus, landlord tenant law and employment law currently have very little in common in their application of the rollover doctrine and have evolved into entirely separate bodies of law.

             This article will demonstrate how Jewish Law draws on the same legal doctrines in its application of the rollover contract to both the holdover tenant and employment contracts.  The issue will first be addressed from a landlord tenant perspective.

I.            THE HOLDOVER TENANT- TENANCY AT SUFFERANCE

 

            The Jewish laws of the holdover tenant are anything but settled.  After much research I have found that even the most basic understanding of the law remains unclear.[1]

            This lack of clarity in Jewish law has resulted in many decisions which are built entirely on legal presumptions, inferences, and the burden of proof.  Significantly, according to Jewish law, almost all disputed questions of law and fact between a landlord and tenant, are decided in favor of the landlord’s proprietary interest in the land; as according to the law, the landlord is the true owner of the property.[2]  Thus, the burden is upon the tenant to produce enough evidence in order to tip the scale in his favor, or he faces a default ruling on the issue.  This contrasts with the common law approach, where policy concerns are the controlling determinants. 

            Apparently, the reason for this legal confusion can be traced to the fact that neither the Bible nor the Talmud speaks directly to this issue.  While the Talmud does generally prescribe laws of tenancy, for example a doctrine of notification requirements, regarding the holdover tenant the Talmud is unusually silent; and although it is probable that such a tenant did in fact exist, the Talmud does not present us with a holding to be adopted.  Thus, as with other similar questions of Jewish law, a parallel in case or legal device must be sought in order to avoid a doctrinal vacuum.  This author will attempt to plow through the many comments regarding this matter and narrow them down to two specific approaches.

            To this author’s knowledge, the first to discuss this issue from a Jewish perspective was the great legal scholar Rabbi Asher ben Yechiel[3] (hereafter referred to by the acronym “Rosh”).  An individual asked Rosh the following question:

.  .  . in this country there is a common yearly commencement of all leases and as a result all know when the [yearly] lease will terminate.  Now this [tenant] Reuven leased a house from Shimon [landlord] for one year for a set amount and at the termination of the year’s lease, remained in the house approximately one to two months.  Neither party had said anything to each other regarding the lease and its future [application for a second year term].  Now Reuven [tenant] wants to pay only for the extra time he remained in possession until today, and to quit the premises.  However, Shimon [landlord] advocates that since the tenant did not inform him of his intentions to leave the lease, he may assume that [Reuven] would stay and as a result did not search for another tenant.  Therefore, the renter should have to pay a full year’s worth of rent even after quitting the premises. What is the law? [4]

Here, Rosh was asked about a specific case dealing with what appeared to be a holdover tenant, where the term seemed to be set at one year, and at the end of that year the tenant had decided to remain.  However, it must be noted that the question being posed assumes that the tenant was liable for the time actually held over.  The significance of such a point will be explained at a later juncture.  Thus, the sole issue to be addressed by Rosh, was regarding the balance of the year’s rent.  Mainly, should the tenant be forced to compensate the landlord for the full second year lease?

            Rosh answered in a response that would later be enshrined in the annals of Jewish landlord tenant law, as follows:

ANSWER: The law lies with Shimon [landlord].  The Mishna says in Baba Metzia (101b) “A person rents a house to his friend during the winter months etc. and the Talmud comments . . . and just like the landlord must provide adequate notice [of future termination], so too the tenant must provide adequate notice. For what reason?  Because the landlord may say, “had I been informed I would have exerted myself to find a suitable replacement tenant.” . . . in any event, since here in this case it is customary to rent a house for a year, and this [tenant] went and extended his occupation of the premises for a month or longer, [he] is obligated to pay for the entire year’s lease, because everyone has already completed their leases and there is no one left to rent this house.  In this case, the tenant certainly had the obligation of warning the landlord that he wished to stay only an extra one-to-two months and to find someone to take the next year’s lease.  And since he did not inform the landlord, the landlord had the right to rely on the city custom that he was living there for the full year . . . [5]     

            Rosh seems to take the approach that under the prevailing custom, unless informed otherwise, the landlord could presume, once the first year had passed, that the tenant had opted to remain in possession until the end of the second year.

            Rosh’s ruling has been adopted by the modern Jewish Code, Shulchan Aruch (hereafter referred to as the “Code”) written by Rabbi Yosef Karo,[6] and as such, it is considered the accepted Jewish law.  The law as presented in the Code encapsulates the response of Rosh:

Subsection # 14: A place where there is a common New Year commencement of all house leases and [tenant] Reuven leased a house from Shimon [landlord] for one year and after the date of termination  remained in the house one month,[7] and neither party had said anything to each other regarding the lease and its future [application for a second year term], and Reuven [tenant] wants  to quit the premises and Shimon [landlord] wishes to restrain his departure until the completion of the [second] year,- the law lies with Shimon [landlord].[8]

            At first blush, it appears that the Code adopts the wholesale ruling of Rosh, in ruling that once a tenant remains past his first year’s date of termination, he will be liable to compensate the full second year lease even though he may wish to vacate earlier. 

            Notably, this issue does not appear to be contentious at all, as there is no clear dissent noted by the standard comments to the Code.  This issue would seem to be resolved, as there is a specific ruling on point codified in the Shulchan Aruch, Laws of Leases.[9]  However, this ruling raises several serious questions.

            First, we must pause to identify and properly understand the words of Rosh.  Further, what is the rule codified by the Code? What does it mean?

            At first glance, it would seem that the rule might be stated as the following proposition – that, “if a tenant holds over for as long as a month after his lease is up, he has in fact set in motion a rollover contract – another full year of rent.”  However, this is clearly not the case, as a close examination of Rosh’s language reveals that in fact he holds quite the opposite.  Rosh could not have held that a holdover tenant’s contract rolls over, because Rosh premised his opinion on the fact that in the town which the question applied to, every lease was consummated on the first day of the year.  Rosh explains that in such a town, failure to present notice to the landlord or vacate by the close of the lease has a damaging affect on the landlord, and as a result, the tenant is liable due to the assumption created by the city custom, which expects a holdover tenant to stay the remainder of the year.[10]

            This point can be elucidated further by the fact that the Code and Rosh are silent regarding a similar circumstance, of a typical holdover tenant, in a place where there are other renters available to take his place! It would seem obvious from Rosh that if the circumstances had changed and the landlord did not have the benefit of a city custom, then the departing tenant might have been able to say to him “find a different tenant, there are others who can take over the lease and I am free of any further compensation.”[11]

            In fact, this point can also be impliedly elicited from Rosh’s wording where he wrote, that reliance upon the city custom was vindicated, “Because everyone has already completed their leases already and there is no one left to rent the house.”-  no one would expect this holdover tenant to decide to pull out and quit the lease. Rosh seems to regard the fact that such a reliance was built on the fact that in this city there would be no else to rent to, as an essential element of the ruling.  Thus, in a city like New York, for example, where there are always people looking to rent and no clear standard starting date for leases, Rosh’s decision would be completely irrelevant and a holdover tenant may leave at any time![12] 

            This point may be further highlighted by a comment by Rabbi Yechiel Michel Epstein,[13] in his commentary to the Code where he notes:

“. . .the same would be in the opposite case, if [in the holdover context] it is the landlord who wishes the tenant to vacate in the middle of the second year, the tenant may remain in possession until the end of the year because of the same argument- that it is impossible to find an appropriate replacement .  .  .”

What is clear from Rabbi Epstein’s commentary is that he regards the ruling of Rosh to be limited to these or facts similar to Rosh’s case.  Thus, reversing the claims, Rabbi Epstein rules that where it is the landlord who wishes the tenant to go under Rosh’s case’s facts, it will be the tenant who will bind the landlord to another year lease.  It emerges then, that neither side can force a change from the status quo and each side can prevent the other from leaving or forcing the other out.

            There has been great debate as to the proper legal basis of Rosh’s ruling.  Later legal authorities have explained that according to Rosh, the holdover tenant is bound to second year compensation and that the only way out would be for the tenant to find a suitable replacement to take over the lease.[14]

            Thus, these later authorities point out an inconsistency in Rosh’s position.  Rema, Rabbi Moses Isserles,[15] codified another ruling of Rosh, where, Rosh had ruled that if a squatter had prevented the owner from accessing his own property, but had not actually lived there, then he was a thief who is exempt from paying rent.[16]  

            Thus, many ask, in our case where the holdover tenant decided to vacate, based on which legal device might the landlord force him to pay for the remainder of the year?  Since he had quit the premises, at most, he retroactively limited others from taking the second year lease.  This is likened to a case where a person physically stands and prevents the access of others from taking up residence while also not taking residence himself; in that case Rosh held that as a thief one is exempt from paying rent.  Why is the holdover tenant in Rosh’s first decision any different from the person in this case?  Why must the tenant in the first case of Rosh pay regardless of whether he physically takes up residence or not?

            There are three traditionally accepted approaches taken to answer this question.

            The first approach taken by Shaar Mishpat (Rabbi Yosef Isser), is that if the tenant vacates, the liability is only a Gerama – (weak) causation. Gerama, according to Jewish law, is not civilly actionable and although there is a debt and compensation is owed, there are limitations in securing such payments, even according to Rosh.

            The second approach, is Nachlas Zvi, who explains that this case rises to the level of a Garmi- proximate (direct) causation, for which we do collect, since the “damage is guaranteed.”[17]  Thus, this case is actionable in court because it is no different from the case of a person who sells his contract to another, and then burns it, thereby preventing its’ collection – an act which courts have held to be an actionable, compensable Garmi act of destruction.

            The third approach, taken by Mishpat Shalom (Rabbi Sholom Mordechai Hakohen Shwadron) and others,[18] likens this case to that of an arev- literally a “cosigner,” where one person (the principal) instructs another (the agent) to spend money on his behalf; the agent must be compensated as if the principal cosigned the transaction (loan).

            Although a fourth approach will be discussed in Part II;[19] the three listed above are the accepted answers to the inconsistency in Rosh.

            The common thread to all these approaches is that they provide compensation from some device other than a contractual obligation.  These devices are all ancillary to the contract, and according to two if not all approaches, there may not be a contract whatsoever.

            All three answers clearly assume that Rosh did not apply a contractual rollover doctrine.  If Rosh truly held that a lease automatically rolled over, these commentators would not have found non-contractual devices to force compensation.  Moreover, Rosh in his decision, would not have emphasized the effect of the town lease schedule on the populace’s leasing habits, much less rely on it in order to collect in a tort-like manner.

            There is an alternative approach to holdover tenancy in Jewish Law.  However, we will first need to examine the Jewish perspective of a rollover contract in employment law.

II.            THE ROLLOVER CONTRACT IN EMPLOYMENT LAW

            The second approach to holdover tenancy in Jewish Law draws upon employment contracts law.  This opinion can be described as the opinion of Rabbi Elijah ben Shlomo Zalman[20] (hereafter referred to by the acronym “Gra”).  In a comment to the codified ruling of Rosh, Gra states that the tenant must compensate the landlord because, -“seemingly he remained there [in possession], with the intent to stay there according to the original agreement, just like I stated regarding law nine and Rema in 163:5 and 221.”[21]

            Gra appears to say, that when the tenant chooses to hold over, he has seemingly agreed to a new second year contract according to the original terms.  This is an entirely new approach, which is not even mentioned in the modern commentaries on this law.  Gra seems to hold that the contract here rolled over according to the original terms, and solely for that reason, the tenant is bound for a second year of compensation.

            Gra’s approach is different from that of Rosh in many important ways.  The first distinction concerns the effect given to the lease during the second year.  As was discussed earlier, Rosh’s decision assumes that the second year rent is not a contractual obligation as much as it is owed for ancillary tort-like reasons.  Hence, benefits or perks which were included for the first year, might very well not be carried over and guaranteed during the second year.  Another major distinction would be the rental fees owed for the second year.  For example, if the lease prices had gone up, then according to Rosh, a higher rate might be owed, since a new tenant would have had to pay the higher rent.  On the other hand, according to Gra, perhaps the old rental price is rolled over.

            In order to better understand the position of Gra let us look at the basis for his position.  Rema, to whom the Gra cites, is found in the Code regarding the laws of “Partnerships of Real Property,” where he writes:

. . . there are places whose custom it is to exempt the chazan of the synagogue from paying communal taxes; it is an appropriate custom, and the proper expected conduct; however, legally they are really not exempted.  Therefore, if the community hired him along with the condition to be exempted and then rehired him without discussion [as to the tax exemption], certainly according to the original condition was he engaged [and thus, exempted again from paying communal taxes].[22]

            It is interesting that Gra cites to Rema, because a greater discussion might be found later on in the Code regarding, the laws concerning “The Hiring [leasing] of Laborers,” § 333,  where Rema cites the same proposition but then enters into a great dispute as to certain aspects relating to the rollover contract.  Whatever Gra’s intent, the position of Rema cited to, does uphold the proposition, that absent new negotiation, when a contract is renewed, the conditions of the original contract remain in effect according to the original terms.                

            The position of Gra is that just like we apply the rollover contract when it comes to employment law, we can similarly apply the same concepts to landlord tenant law.[23]  Thus, this holdover tenant had in mind to live there contractually; as a result, we apply the terms of the original contract and require him to compensate for a full year just like the terms of the original contract.  This approach differs sharply from that of Rosh, and raises the question why Rosh does not apply the rollover contract to landlord-tenant law?  In order to identify why Rosh chose not to apply it to the holdover tenant, we must first identify the basis for the rollover contract in employment law.

            The basis for Rema’s rollover theory comes from a famous responsa of Rivash- Rabbi Isaac ben Sheshet Perfet[24] (hereafter referred to by the acronym “Rivash”), when he was asked about the aforementioned synagogue-employee, tax-free-employment- contract-case.[25]  His answer would shape contract law for years to come.          

            As mentioned earlier, the case involved a community that had initially contracted with a chazzan (cantor) to be exempted from paying the communal taxes during the year of work; subsequently, he was approached and rehired for a second year without mention of his tax exemption.

            In his answer, Rivash brings forth the concept of a rollover contract based on the doctrine of “Al daas rishona hu oiseh” – loosely translated- “he acted according to the original condition,”- which is based on a Mishna in Tractate Kesuboth.   The Mishna states:

            MISHNAH. [IN THE CASE OF] A MINOR WHOM HIS FATHER HAD GIVEN IN MARRIAGE, THE KETHUBAH OF HIS WIFE REMAINS VALID, SINCE IT IS ON THIS CONDITION THAT HE KEPT HER AS HIS WIFE.  . . GEMARA. R. Huna stated: [The ruling of our Mishnah] was given only in respect of the maneh or the two hundred zuz; to the additional jointure, however, she is not entitled. Rab Judah, however, stated: She is entitled [to receive payment for] her additional jointure also. . .  Is not this then an objection against Rab Judah? — Rab Judah was misled by the wording of our Mishnah. He thought that the rule, ‘THE KETHUBAH OF HIS WIFE REMAINS VALID’, applied to the full amount; but in fact it is not so. It applies to the statutory kethubah alone.[26]

            Rivash deduces from this passage regarding marital contracts, that ‘where a contract is later acted upon by the parties, then its terms are assumed to be those based on the agreement originally made.’

            As we will soon see, much ink has been spilled on account of this passage.  The reason being, that based on this passage there is also an implication that not all terms will always roll over, as the Talmudic passage suggests,  “. . . It applies to the statutory kethubah alone.”[27]  Thus, it is implicit that the doctrine of a complete rollover contract is not to be wholly accepted, because we see that even in the Talmud’s case the jointure did not “roll-over.”

            This ambiguity led to significant disagreement among the authorities regarding employment contracts.

            Rema, concerning the case of the chazzan and his tax free contract adds the following ruling to the above mentioned ruling of Rivash:

A Shliach Tzibur [chazzan] who leases himself out to the city leaders for a year conditionally for such and such an amount, and then went and re-entered a lease with the same city, with a second group of leaders without mention of conditions, certainly according to the original condition was he engaged [ and thus, exempted again from paying communal taxes]. However, if he continued doing his job with silence regarding his contract we do not say according to the original condition he currently engaged.[28]

            According to Rema then, if the worker continued in silence, it is as if he has negated the benefits initially awarded under the original contract.  It is only if and when he engages the community in negotiations regarding a new contract that his old contract is awarded in its entirety.

            The logic behind such an opinion leaves us wondering as to why such a ruling is in order.  Should it be worse for a worker who continues to work based upon his old contract than a worker who merely mentions his contract status?

            Further, according to Rabbi Shabbatai ben Meir ha-Kohen[29] (hereafter referred to by the acronym “Shach”),[30] the rollover contract and its perks are in effect, according to Rema, only if the worker agreed to work again without mentioning specifics and only in that case.  For example, if the worker mentioned a similar or different amount then the year before, Shach holds that according to Rema such a negotiation will negate the rollover perk.  His position opposes the holding of “Levush”- Rabbi Mordecai ben Avraham Yoffe[31] who maintains that even the mention of a different salary would not negate a rollover of the other perks.[32] 

            According to the Shach’s interpretation of Rema, why is there any difference between a mere verbal acknowledgment of the need for a new contract, which satisfies Rema’s rollover provision, and continued physical performance of the job which does not satisfy Rema’s rollover provision?

            This question is strengthened by an examination of the rationale of Shach’s position.  Shach’s position, is that where a discussion took place regarding the composition of the new contract and yet a perk was not discussed, that is considered clear acknowledgement of the parties intent to form a new contract according to a new set of terms, disregarding the former perk.  Thus, where no new discussion of the terms of the contract took place, Shach holds that according to Rema, the new agreement rolls over and the terms are assumed to be the same as the original contract.  Based on the above rationale, certainly where no discussion took place but the employee continued to fulfill his duties, one should be able to assume that the terms of the original contract still apply?  

            Shach himself addresses this question, and states that in reality it seems that the position of Rema is mistaken.  Essentially, Shach asks two questions. The first, is that Rivash had already distinguished this case from the case of the marital contract in a different manner; that regarding the marital contract, since the original terms of the contract were not effective at the time, (as a child cannot effect joiner or a marital gift) the term cannot rollover without clear enunciated intent.  Therefore, silence only disqualifies a perk from rolling over, where the perk was not initially effective.  Here, however, the employee’s contract was entirely effective during the first year, and therefore there is no reason for it not to roll over.  As a result, silence should play no role in assessing a rollover employment contract.[33]

            Second, Rema ignores a proof discussed by Rivash.  In citing a proof to the rollover doctrine, Rivash cites a decision of Rav Hai Gaon (Hai ben Sherira, 939 – 1038) which says that where a tenant held over for a second year, and the rent had gone up during the second year, and no discussion took place between the landlord and tenant, the same rent agreed upon for the first year would be owed for the second year.  In this case, it is clear that both parties were silent and yet Rivash and Rav Hai Gaon do still rollover the original contract.  This clearly rebuts the position of Rema.

            Therefore, aside from the logical peculiarity, the precedent and basis of Rema himself stands in opposition to the rule codified by Rema.  In fact, as a result of these questions, Taz – Rabbi David HaLevi Segal[34] declares that the law is unlike the position of Rema and that silence is not a bar for the rollover doctrine. 

            Ultimately, Shach himself agrees with Taz and disagrees with Rema.  However, he first attempts to salvage Rema’s opinion by distinguishing employment contract law from landlord tenant law.

            Shach attempts to defend Rema  by stating that ‘perhaps the holdover tenant is different in that there is never a “silent” holdover.’  This is due to the nature of a landlord under these circumstances.  Any landlord who neglects to oust his holdover tenant has “voiced” his decision to allow the tenant to stay.  This stands in contrast to a person hired by the community to perform a service; while performing his duties, there are few reasons to oust him from performing such a service, there are no landed rights vested in the performance of his service, thus absent some clear negotiation, his former contract does not roll over.  Shach points out[35] that if this logic is proper; then if the worker was given a leased tenancy as a perk ( a house to reside in ), then since there is no ‘silence’ regarding the house, then it can be said that there was no ‘silence’ regarding the other contract provisions.

            In his final analysis, Shach points out that Rema would seem to hold that in an employment contract where there was only silence regarding the second year, the truth is, the employee will only be paid at the minimum going rate for that class of worker, and so too, a holdover tenant will only be obligated to pay the lowest rental rate for that class of leases (which is clearly not the opinion of Rivash or Rav Hai Gaon). 

            Thus, regarding the holdover tenant, Shach is conflicted as to Rema’s position regarding the issue of silence.  On one hand, he holds that that Rema agrees to Rivash and Rav Hai Gaon, because silence is never possible regarding a landlord and his tenant.  On the other hand, perhaps Rema would disagree where there is no discussion in a case of a rented apartment and only the cheapest rent available will be owed.

            From the end of Shach’s discussion it appears that he agrees with Taz, in that the law should not follow Rema.  In fact, although here Shach ends off his comment with the words “tsurich iyun,” which means that more research is needed,- (not a clear rejection of Rema), back in landlord tenant laws, Shach is more straightforward in his adoption of the opinion of Rivash and Rav Hai Gaon, at least regarding the landlord tenant hypothetical.[36]

            Regardless of Rema’s true position concerning the holdover tenant law “rollover doctrine,” we have now found clear application of the principle in a case where the market price for leases has risen.  In such a case, these authorities, including Shach, Rivash and Rav Hai Gaon, clearly state that they would apply the doctrine to enforce the original rates, allowing the holdover to pay less rent than the standard rate of that area.

            However, as discussed earlier, Rosh should also disagree with these authorities and perhaps lend credence to the alternative understanding of Rema (which does not recognize a rollover contract absent negotiation, even in the holdover context, contrary to Rivash et al.).  As explained in part I, Rosh treated the compensation of the landlord in a holdover action much like a collection of damages or a tort action.  There, we proved that Rosh had limited his application to damages, and that compensation was not based on a contractual relationship.  This certainly contrasts with the position of these other authorities who would force compensation because of a contractual relationship formed by the legal doctrine of a rollover contract.  This presents a legal quandary as to how Jewish law purports to understand the holdover tenant.

            An example of this legal ambiguity is the discussion of some commentators regarding another facet of the employment contract.  In one case, some individuals were hired by a city for a period of three years.  At the end of the term they were kept on.  Moreover, because they complained that their salaries were insufficient, they were raised.  Later, the city wished to terminate their agreement.  The question was discussed that in the absence of any mention of a term of years, how many years were agreed upon for a second term?

            Seemingly, according to all authorities, this would depend upon the undisputed principle applied to employment contracts, that is – the rollover doctrine.  Thus, here, in this case a new contract of three years duration should have been awarded.  However, it is reported that in this instance, the court looked to the decision of Rosh regarding the holdover tenant and concluded that the contract was extended for a full year because it was a customary yearly lease, here however, regarding employment, “the initial three years were only for testing their abilities, at the end of their first term there is no sense in assuming another three year period was awarded.”[37]

            Putting aside the seemingly conclusory logic of this decision, in what seems to be a relatively clear issue of employment law, this decision confused the issue with that of landlord tenant law.  But as I have already demonstrated both areas of law are very much related regarding these issues.  Further, we see that this court understood the laws of the holdover tenant to be that of the position of Rosh.  As a result, in its application of Rosh’s holding, the court transformed a law regarding employment law.  Thus, we see how tenant law might also affect employment law.  Further we see, that if the holdover tenant law itself was decided like Gra and the alternative approach to the landlord tenant holdover doctrine was applied, then the law would have turned out differently regarding the issue of term of years in an employment rollover contract, and absent some abstract policy, these individuals would have been entitled to another three year contract!

            It is insufficient to describe the rollover contract debate as a simple dispute amongst the jurists.  First, any Jewish court or panel will have to make a decision as to how they will apply the law.  But more fundamentally, there is a problem with understanding the Code. 

            As explained earlier, the author of the Code adopted the approach of Rosh on the issue of a holdover tenant.  Thus, the holdover tenant should not compensate based on a rollover doctrine but rather based on a fact specific damages theory.  Therefore, it would seem that in matters of landlord tenant contracts, a rollover contract theory is inapplicable.  However, this is clearly not the case.

            The Code states the following: [38]

Subsection # 9: That which we have said that a landlord may not evict, or a tenant quit, without fulfilling notice requirements, if he wishes to raise the rent amount he may say . . . but if no discussion took place regarding the raising of the rent and the tenant stayed, it is assumed that he stayed with the intent to pay the original [lower rate].[39]

            In this law, the Code discusses the periodic tenancy, which contains no set end date, but rather an agreement to rent from month to month.  Absent any termination it is automatically extended another period.[40]  Because of the nature of such an agreement, Jewish law requires notice (usually thirty days, sometimes a year) before vacation or ouster by either party.  This discussion however, pertains only to the raising of rent.  The Code holds that one may not raise the rent without adequate notice.  Therefore, a tenant who entered into a new month without notice to a raise in rate may not be raised until the end of that new term.  The basis of the Code’s position is none other than the rollover doctrine postulated by Rivash et al.  If a tenant continues the lease, the tenant must have intended to pay the former month’s rent (to stay for another month without any new negotiations.)  As such, the rollover doctrine states that the terms of the former month are still in effect for the second month.

            It is possible to distinguish this case, by pointing out that a rollover agreement here would not create a new contract according to the original terms, as in the true rollover doctrine, (requiring a new kinyan[41]) but rather, it is just an extension of the former lease.  However, this cannot be the case according to Shach.[42]  Shach, referring to this law, explains that even in the case of a rental with a set termination date, a tenant who holds over and stays will be subject to a new contract with the former rent rate, despite the fact that the doctrine created a new contract.[43]

            It is this author’s opinion that there are two approaches to dealing with these issues.  The first approach is that of Aruch Hashulchan, and the second is that of Gra.

            Aruch Hashulchan[44] explains that all agree with the rollover doctrine regarding both employment contracts and renters’ lease agreements.  However, the rollover contract doctrine is only an adhoc, ex post legal fiction, which stands for the proposition, that where a contractual event took place and we wish to determine its legal significance, then we apply the status quo in establishing its legal terms.  However, prospectively, both sides might then back out or alter the terms of the arrangement.  Based on this explanation, Rosh’s position becomes clear.  The holdover tenant is liable to compensate for the first month of possession because of the hold over tenant doctrine, at the rate of the former contract, like the opinion of Shach and Rivash.  Now the only importance of Rosh is to hold that prospectively under fact specific circumstances the remainder will also be owed because of certain damages theories.

            Further, when dealing with employment contracts, Rema would agree that even absent any discussion, the rollover contract doctrine applies to the employee’s contract, but only up to the date of a termination or negotiation/discussion.  Only following some discussion, will terms of the contract be subject to new negotiations.

            While Aruch Hashulchan’s approach is novel in its ability to address all of the issues I discussed, to this author, it does not seem to be an adequate representation of all of the aforementioned holdings.     

            Proper analysis of Aruch Hashulchan’s approach raises several questions.  First, why should the rollover doctrine not apply prospectively – ex ante, why only ex post?   Second, all agree that a renter in a periodic tenancy on a month to month basis, may not be approached mid month with a demand for a higher rate, and that despite any discussion or negotiation at all, the rollover doctrine locks in ex ante until the end of the thirty day cycle.  Finally, it is pretty clear that Rema et al. never distinguished the rollover doctrine in this manner.

III.                                           Conclusion

 

By this author’s final analysis, it seems that all opinions truly agree on the application of the well founded rollover doctrine in both employment law and holdover tenant law.  Thus, Rosh’s decision is to be considered an outlier, in that his codification seems to reject this theory.  However it does seem that Rosh attempted to answer his specific question using general laws of landlord tenant law and in doing so avoided the need to call on peripheral devices such as a rollover doctrine.  As such, his codification by the Code should be seen only as a second reason for liability in that case and that absent a rollover doctrine; the tenant would be liable in Rosh’s case.  In the author’s opinion, the reason Gra points to the doctrine of the rollover contract in citing the foundational principles of the Code’s holdover tenancy law, even though Rosh himself relied on other principles; is because after our complete acceptance of the rollover doctrine, it is no longer necessary to restrict ourselves to the narrow reasoning of Rosh, who forced the tenant to pay compensation for the remainder of the year’s rent in a holdover dispute based on a theory of damages.  Instead, we may now embrace a rollover contract theory as

espoused by Rivash.  


* Editor-in-Chief, Comparative Law Reporter; Staffer, Cardozo Arts &Entertainment Law Journal.  J.D. Candidate, Benjamin N. Cardozo School of Law, 2011; B.A., Farleigh Dickinson University, 2005.

[1] See, e.g., 4 Shailos U’Tshevos, Maharash Engle § 20.

[2] See generally Shulchan Aruch, Choshen Mishpat § 312:15.

[3] 1250 – 1327.

[4] Shailos U’Teshuvas Ha’Rosh Rule One § 7.

[5] Id.

[6]1488 – 1575.

[7] See Sma, Choshen Mishpat § 312:14 #20 (that this is nonspecific, and that even one day would have caused the same result.  The code just says one month because it is quoting the example of Rosh.  But see Taz Id., that there will generally be an acceptable one-to-two-day, acceptable waiver before the holdover classification is triggered.

[8] Shulchan Aruch, Choshen Mishpat § 312:14.

[9] Id.

[10] See generally  4 Mahri Ben Lev § 32 (Who discusses the language and connotation of Rosh).

[11] Id.

[12] But see Aruch Hashulchan, Choshen Mishpat § 312:23 that notice is still required in order to quit the premises.  But see Chochmas Shlomo § 312:1 who disagrees. 

[13] 1829-1908.

[14] See, e.g., Pischei Teshuva, Choshen Mishpat § 312:4, 9 – where he cites the above proposition in the name of the Sha’ar Mishpat. 

[15] 1520 – 1572.

[16] Rema, Shulchan Aruch, Choshen Mishpat § 363:6n3. (As opposed to the position of Ramah brought in Tur Id.)

[17] In Hebrew-“Bari He’zeikah.”

[18] See Mishpat Shalom § 16:14.   See generally Pischei Choshen  § 5:16n38.

[19] The fourth approach will be that of Gra and Aruch Hashulchan Supra in part II.  Similarly, see R. Shlomo Kluger, Chochmas Shlomo § 312:1, who posits that the lack of notice creates a situation contractually understood from the time of pre-contractual negotiations which creates the present liability.  But see 4 Shailos U’Tshevos Maharash Engle Vol. § 20.

[20] 1720 – 1797.

[21] Gra,Shulchan Aruch, Choshen Mishpat § 312:14 #23.

[22] Shulchan Aruch, Choshen Mishpat § 163:5 (comment of Rema).

[23] We will later see that indeed even the Mechaber in Shulchan Aruch, who cites and codifies the Rosh’s position will have to agree to this proposition.

[24] 1326 – 1408.

[25] Shailos U’teshuvos Ha’Rivash § 476.  But see Bais Shmuel, Even Ezer, § 114:11 #15; Shach § 333 # 43 (“perhaps there are those that argue with the Rivash.”)

[26] Bavli, Ksuboth 90a, (Soncino translation). See Rashi Id. See also Shulchan Aruch, Even Ezer § 67:11

[27] Id.

[28] Rema, Shulchan Aruch, Choshen Mishpat § 333:8.

[29] 1621–1662.

[30] Shach, Shulchan Aruch, Choshen Mishpat § 333: 43.

[31] (1530 – 1612).

[32] See Shach Id. #42.  Aruch Hashulchan  § 333:29 sides with Levush, by explaining that it is quite normal to discuss only the essential part of the contract, namely the salary amount, without re-discussing all of the ancillary issues or perks.  Therefore a discussion as to the amount of the contract will not prevent the application of the other issues through the rollover contract doctrine.

[33] Interestingly, Shach quotes Rivash using the word He’erichuhu, with an ‘Alef.’  However, our copy of Rivash contains an ‘Ayin.’

[34] 1586 – 1667.

[35] In a parenthesis.

[36] Shach, #9 (To date I have struggled to understand the Nesivos to § 333# 16.)

[37] T’shuvos Chemdas Shlomo, Orach Chayim § 7 cited by Pischei Teshuva, Choshen Mishpat, § 333:8 #14.

[38] See Bais Yosef Id.; Gra Id.

[39] Shulchan Aruch, Choshen Mishpat § 312:9.

[40] See generally Dukeminier, Krier, Alexander, & Schill, Property 364, (6th ed. 2006). 

[41] For a more extensive discussion regarding the Kinyon issue see Chochmas Shlomo § 312:1; 4 Shailos U’Tshevos Maharash Engle § 20; Pischei Choshen Schiros § 7:3 #10.

[42] Shach, Shulchan Aruch, Choshen Mishpat § 312#9 (in his explanation of Rema commenting to Mechaber. – Unlike his theory which he presented in his comment to Rema § 333:8).

[43] See generally Pichei Choshen, Schiros § 5:5 # 10; Machane Efraim, Schiros § 11.

[44] § 333:30.