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Shabbat Shuva Parashat Haazinu | 5768

P'ninat Mishpat

Acquisition By Means of Transfer in the Land Registry - Based on Halacha Psuka - vol. 32 - A Condensation of a Psak from Piskei Din Rabbaniim - vol. I



 
Case: The plaintiff (=pl) has been requested to do chalitza for his sister-in-law (=def), after her husband died without children. Pl agrees to do chalitza only if def agrees to transfer to him property that is registered in her name in the Tabu (Land Registry). According to pl, his now deceased brother had requested that, in order to ensure def’s rights to the apartment that was part of an inheritance to the two brothers, pl should transfer his rights to it as registered in the Tabu to def. Pl says that he agreed on the condition that def not remarry, which she now wants to do. Therefore, he demands the property back. Def denies ever making a commitment not to remarry.
 
Ruling: The transfer of property by means of changing the ownership in the Tabu has the status of a kinyan (an act of acquisition) based on two halachic mechanisms. One is situmta, the idea that any act that is accepted within a segment of society as the equivalent of a kinyan works as such (see Bava Metzia 74a). The Shach (CM 201:1) says that situmta works also for land in a place that the custom clearly extends to land. In fact within Israel the custom is that registry in the Tabu is accepted as a kinyan whether in reference to a sale or to a gift.
 A second justification for registry in the Tabu to work is that it is binding based on the law of the land (dina d’malchuta). Even according to the opinions that dina d’malchuta works only in regard to types of taxes, it may apply to Tabu because the government levies a tax for acquisitions when the Tabu registry occurs. Therefore Tabu’s effectiveness is a condition for the government’s ability to levy its tax. Although beit din is aware of the Ran’s opinion that dina d’malchuta does not apply within Israel, this is a minority opinion that is not accepted as halacha.
 Def may have acquired the property also through kinyan chazaka (owner-like use of the property). Although she did not intend to acquire it that way, R. Akiva Eiger (Shut 37) says that if someone had in mind to give over the property, even if neither the giver nor the recipient had in mind to use that mechanism, the kinyan works.
 Beit din rejects pl’s claim that there had been a condition on the transfer of the property for three reasons: 1) Def denies the claim and, without any proof on pl’s part, he cannot claim that a confirmed transaction was done on condition. 2) Since the condition is one at which def could fail at any point in her life, it is illogical that pl would give her the possibility to use the property as she likes without taking any precautions. 3) Even if def agreed at some point to the condition, if it was not confirmed at the time of the transfer at the Tabu, the condition is not binding.
 
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