Asher met with his cousin Yitzi and two other friends, Reuven and Shimon. While they were sitting and talking, a classmate, Yankel, approached them. “Do you have $50 I can borrow?” Yankel asked Asher.

“I do, but I don’t trust you,” said Asher. “Tomorrow you’ll claim that you never borrowed! You’ve lied to me in the past.”

“What’s the problem?” said Yankel. “There are three other people sitting here. They can be witnesses that you lent me!”

“All right,” Asher consented. “The three of you are witnesses that I’m lending Yankel $50.”

A week later, Asher asked Yankel for the money. “Please return the $50 that I lent you,” he said.

“What are you talking about?” replied Yankel. “I never borrowed $50 from you!”

“Are you nuts?” said Asher. “Don’t you remember that I lent you the money in front of Reuven, Shimon and Yitzi?”

“No such thing,” said Yankel. “I didn’t borrow $50 from you.”

“I’m going to have to sue you in beis din,” said Asher.  

“Go ahead,” said Yankel.

Asher had Yankel summoned to Rabbi Dayan’s beis din. He presented his claim; Yankel denied it.

“Do you have proof of the loan?” asked Rabbi Dayan.  

“I have three witnesses,” said Asher.

Each witness, in turn, stood up and testified. Yitzi concluded: “My cousin knew that Yankel was liable to deny, but we were witness to the loan.”

“Asher is your cousin?” asked Yankel.

“Yes, our fathers are brothers,” said Yitzi.

“If so, he is disqualified from testifying,” said Yankel. “A first cousin is considered a close relative. I’m not paying” (C.M. 33:2).

“Leave him out,” said Asher. “There are still two witnesses, Reuven and Shimon, who are not relatives. Isn’t that enough?”

“It is not,” answered Rabbi Dayan. “The Mishnah (Makkos 5b) teaches that if one witness in a group is found to be a relative or otherwise disqualified from testifying, the entire testimony is void. This is similar to the saying ‘One rotten apple spoils the whole bunch.’”

“Rebbi and Rav Yossi dispute whether this rule applies also to monetary issues,” continued Rabbi Dayan. “The accepted halachah is in accordance with Rebbi that it applies also to monetary testimony” (C.M. 36:1).

“Then how can anybody ever testify?” asked Asher. “In many instances relatives are present!”

“A relative disqualifies others only if he intended to serve as a witness with them,” replied Rabbi Dayan. “However, if he saw the event but had no intent to serve as a witness, he does not void the testimony of the other qualified witnesses. Furthermore, while the Rambam, Shulchan Aruch and Shach (36:8) maintain that the relative voids through intent alone, Tosafos and the Rema maintain that he voids the other witnesses only if he actually came and testified.”

“Does this rule apply to anyone who is disqualified from testifying?” asked Asher.

“It applies to relatives and witnesses who are considered wicked,” replied Rabbi Dayan. “However, it does not apply to women or children, who are not valid witnesses at all. Some Poskim writes that it also does not apply to those who are disqualified only Rabbinically. There is a dispute whether it applies to people who are disqualified because of a vested interest” (Pischei Choshen, Eidus 1:[36]; Maharsham 2:7, 2:226[32]).

“Would it help if Reuven and Shimon would testify again, by themselves?” asked Asher.

“No, since their testimony has been voided already by your cousin Yitzi,” answered Rabbi Dayan (Sma 45:34).

“What about a wedding?” asked Asher. “What if an attending relative intended to be a witness?”

“We assume that relatives have no intent to be witnesses,” replied Rabbi Dayan. “However, for this reason the practice is that the officiating Rav and chassan designate specific witnesses excluding others. Then the relatives who are present are no longer considered part of the group of witnesses, and cannot void their testimony” (Shach 36:16-17).

I leased a storefront for five years. After two years I found a better storefront for less than what I was currently paying. I asked my landlord if he would release me from the remaining three years of the lease, and he agreed. The negotiations with the second landlord fell through, so I called my current landlord to inform him that I would remain for the next three years as stated in the lease. He claims that once I decided to walk away from the lease, I lost my rights, and if I wish to stay he will be charging a higher rate.

Q: Does Halachah permit me to retract my decision to cancel the remaining years of the lease? And if the landlord does not find another tenant to occupy that storefront, can he cancel his agreement to release me from the remainder of the lease?

A: Generally, forgoing a right (mechilah) does not require a kinyan for it to be binding. Therefore, someone who orally forgives a lien or releases someone from a debt may no longer act on that lien or collect the debt. An exception to that rule is forgoing rights that stem from ownership of an object. Orally forgoing that right is not binding, and a kinyan is necessary to forgo ownership rights (C.M. 241:2, 245:9). Therefore, we must explore a tenant’s rights in leased property to determine whether orally forgoing those rights is binding (Kovetz He’aros, Yevamos 53:5).

Rivash (510, cited by Sma 189:1 and 315:2) maintains that tenants acquire rights to leased property and are considered owners for the duration of the lease (sechirus liyemei mimkar). Therefore a kinyan is necessary if the tenant forgoes his rights in the lease and an oral agreement is not binding.

Some authorities contend that the same is true regarding the landlord. A landlord who orally releases his tenant from the remainder of the lease may renege unless he solidified the agreement with a kinyan (Darkei Noam 4, Ketzos 316:3). Others argue that a kinyan is necessary only for the tenant since he “owns” the leased property. The landlord merely has a monetary claim for lease payments, and therefore an oral agreement to release the tenant from the debt is binding (Raanach 38, cited by Mishneh LaMelech, Sechirus 5:5; Ketzos ibid.; Be’er Heitev 312:1).

To summarize, according to Rivash a tenant may retract his cancellation of the remainder of the lease, provided that the cancellation was not confirmed with a kinyan. If the landlord wishes to retract his cancellation of the lease, there is a dispute whether he may do so, even if the cancellation was made orally.

Additionally, there are authorities who disagree with Rivash and maintain that a tenant does not “own” the property, he merely leased the right to use it. Accordingly, a tenant may not renege on an oral cancellation of the lease (Shaar Mishpat 315:1, Machaneh Ephraim, Sechirus 9).

Therefore, if the tenant wishes to retract his cancellation of the lease, since the Rivash maintains that without a kinyan the cancellation is not binding, he may not be forced out of the storefront (See Mishpat Shalom 189 and Emek Hamishpat, Sechirus 45, which explain that the tenant is muchzak). If the landlord wishes to retract his agreement to cancel the lease, he cannot force the tenant to pay rent for the remainder of the lease, since the tenant may rely on those Poskim who maintain that the landlord cannot retract his cancellation of the lease either because the tenant owes him a debt that can be forgiven orally or because no kinyan is necessary to cancel a rental agreement.

Q: I arranged verbally with my landlord to terminate the lease early. I now want to retract and complete the rental, while he insists on terminating it as agreed. Is our verbal agreement binding?

A: As previously mentioned, rental agreements require an act of acquisition to be binding, since it is like acquiring temporary ownership of the property. Therefore, many maintain that a verbal agreement does not cancel the rental without a countering act of reacquisition by the landlord. Others disagree, since the landlord remains owner of the property.

Some distinguish that a verbal statement of the tenant does cancel his acquired rights, but a statement of the landlord relieves the tenant of his monetary obligation, if he wishes to leave (mechilah).

See From the BHI Hotline for further elaboration of these opinions.

If the lease stipulates that either party can terminate the rental through giving 30 days’ notice, the stipulation is valid, like any other stipulation between two parties (Sma 189:1, 315:2; Ketzos Hachoshen 316:3; Mishpat Shalom 189:[2]; Pischei Choshen, Sechirus 4:2[7]).