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Shabbat Parashat Lech Lecha 5780

P'ninat Mishpat: Who Should Chip in How Much for a Joint Wall?

(based on ruling 77085 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) built his home adjacent to the property of Family Y and, with their blessing, spent 42,000 shekels on a wall on their boundary. In the meantime, Family Y died, their inheritors sold the property to the defendant (=def), and now def has built a home on it. Pl demands that def pay for half the expense of the wall. Def, who at one point agreed to pay, now says that either Family Y already paid pl, or it was their responsibility to do so, not def’s. The inheritors refuse to come to beit din to adjudicate or tell what they claim happened. Def also brought estimates for such a wall for much less money.

 

Ruling: Because the Family Y inheritors refused to join adjudication, we are unable to consider giving them responsibility to pay. According to part of the beit din panel, def’s agreement to pay is considered a binding admission, and it relates to the wall as built, not a cheaper one that could have been built. However, it seems more likely that any admission was general, and not to a specific sum. It also seems that he did not obligate himself at a certain time of payment, and therefore it should be at the time that he benefitted from it, which was when def built his home and would have had to build a wall.

According to another dayan, if we can view def’s agreement to pay as a new obligation, it is only binding in a formal manner, in front of witnesses or with a document (Shulchan Aruch, Choshen Mishpat 40:1). If we view it as an admission about the past, the question is whether we will accept his claim that he did so only as an initial gesture to begin on good relations with his new neighbors. The K’tzot Hachoshen (80:1) cites a machloket Acharonim whether such an excuse (known as an amatla), beyond the two excuses recognized by the gemara, can work to undo an admission which gives another person monetary rights (for religious matters, it does work). Here there is an additional reason to say the admission was based on a mistake, as def now points out that it is possible that Family Y already paid. Therefore, we need to see if def has an obligation, as the present neighbor, based on the merits of the claim.

The obligation to take part in building the wall begins only when the wall becomes a need of the neighbor as well, whether based on Halacha or based on the law and prevailing minhag. Thus, Family Y could not have been forced to pay before they started their own building, an event that did not take place. Since one is assumed to not pay before the time he is required to (Bava Batra 5a), Family Y is presumed to have not paid. Since the nature of the obligation in taking part in a separating wall depends on property ownership and is not personal, def would become obligated upon buying the plot, and therefore they must pay.

Since it would cost more money than it is worthwhile to pay an appraiser for the cost of a simple wall, we accept the higher of the two estimates of the experts that def produced. Def must pay pl half of that amount.

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Dedication

We daven for a complete and speedy refuah for:

 

Nir Rephael ben Rachel Bracha
Efrat bat Sara

Refael Yitchak ben Chana

Netanel Ilan ben Sheina Tzipora

Netanel ben Sarah Zehava

Yehuda ben Chaya Esther

Meira bat Esther

Yair Menachem ben Yehudit Chana

Rivka Reena bat Gruna Natna

David Chaim ben Rassa

Lillian bat Fortune

Yafa bat Rachel Yente

Eliezer Yosef ben Chana Liba

Ro'i Moshe Elchanan ben Gina Devra

 

Together with all cholei Yisrael

 

Hemdat Yamim is dedicated

to the memory of:

those who fell in wars

for our homeland

 

Eretz Hemdah's beloved friends

and Members of

Eretz Hemdah's Amutah

 

Rav Shlomo Merzel z”l
Iyar    10

 

Rav Reuven Aberman z"l

Tishrei 9  5776

 

Mr. Shmuel Shemesh  z"l
Sivan 17 5774

 

R' Eliyahu Carmel z"l

Rav Carmel's father

Iyar 8  5776

 

Mrs. Sara Wengrowsky

bat R’ Moshe Zev a”h.

Tamuz 10    5774

 

Rav Asher Wasserteil z"l

Kislev 9 5769

 

RMeir ben

Yechezkel Shraga Brachfeld z"l

 

RYaakov ben Abraham & Aisha

and

Chana bat Yaish & Simcha

Sebbag, z"l

 

Rav Yisrael Rozen z"l
Cheshvan 13, 5778

 

Rav Benzion Grossman z"l
Tamuz 23 5777

 

Rav Moshe Zvi (Milton)

Polin z"l

Tammuz 19 5778,

 

R' Abraham Klein z"l

Iyar 18

 

George Weinstein,

Gershon ben Yehudah Mayer,

a lover of the

Jewish Nation Torah and Land

 

R’ Eliezer ben R’ Yitzchak Steinberg z”l

 

Hemdat Yamim
is endowed by Les & Ethel Sutker
of Chicago, Illinois
in loving memory of
Max and Mary Sutker
and
Louis and Lillian Klein, z”l

 
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