Issues That Have No Reference in the Lease
A lease is a contract that is often read again. The duration of the contract is long. The lease is accompanied by many changes between the parties, who are usually private individuals who have no expertise in performing such contracts.
The parties usually do not invest enough time, thought, and advice before signing it.
Hence the need to write the book which you are now reading.
Therefore, it is not surprising that over the years the parties repeatedly read the lease agreement they signed and try to decide what the lease stipulates in different situations.
Specific rules should be examined which must override the provisions of the lease, after which an attempt should be made to find an appropriate provision in the lease agreement.
To the extent that the reader concludes that there is no reference in the lease, then he must act in accordance with the practice that the parties to the agreement saw as acceptable to them in previous transactions between them. And in the absence of such a practice, according to the practice that reasonable parties see as applicable to transactions of the same type (Maimonides ruled: “And it is a great principle in all negotiation to follow the language of men in the same place and custom.”
Here the reader tries to think things out in advance but in reality, he gropes in the dark. He must decide what is the ‘practice’ in the case in question.
It should be emphasized that the reader is not allowed to decide what he ‘thinks’ is right to do, but rather he should assume to know what a reasonable tenant or landlord would have done.
Many times, a party to a lease, acts incorrectly, because ‘just as their faces are different, so are their opinions’. And who knows how matters will unfold and how the court will interpret the conduct of the parties in the reasonable person test. That is why I recommend acting out of what I call “reducing discretion.”