Shabbat Parashat Noach | 5768
Proof of Ownership Based on Registry in Tabu - Land Registry - Based on Halacha Psuka - vol. 32 - A Condensation of Piskei Din Rabbaniim, XI pp. 116-1
Case: A couple in the process of divorce dispute the relative ownership of their home. The wife’s family gave most of the money for the purchase, but the funds were first placed into a joint bank account. In the Tabu (the Land Registry) the husband and wife are listed as joint owners.
Ruling: The Rambam (Shluchin 4:1) delineates how people become partners in assets. Regarding money, they have to put the money into a purse, which is then lifted up. A partnership document or a kinyan chalipin are ineffective. For movable objects, kinyan chalipin does work, as whatever kinyan works to acquire an object works to create a partnership on it.
The Tur (Choshen Mishpat 176) adds in that when the partners start using the money commercially that also is a kinyan on the partnership. The Taz and S’ma (ad loc.) dispute whether the explanation of the Tur is that the use is the kinyan or that some type of physical kinyan must have been done. In our case, where no kinyan was done on the money, it would be a machloket whether use of the joint bank account created an equal partnership. Additionally, the Rambam was talking about a case where the two sides were initially interested in there being a partnership. In contrast, we have no clear indication that the wife’s family was interested that the husband would be a partner in the home. Thus use of a joint bank account is not grounds for joint ownership.
The gemara (Bava Kama 102b) says that if one buys a field for himself but says it is for the Exilarch (to ward off trouble) the field is his, not the Exilarch’s. Tosafot and the Rosh say that that is so only if he informed the seller and witnesses that he is really buying the field and just wants a second deed in the Exilarch’s name. According to the Rashba, the field is his even if he did not inform the seller and the witnesses because the Exilarch knows why it was written in his name. All assume that normally, the person whose name appears on the deed gets the field even if he someone else was paid. Why then do we say that if A lent money to B but said that the document should be written in C’s name that A is still the creditor (CM 60:18)? The Tumim (60:17) distinguishes between a document of loan, which confirms but does not create a loan, and a sale’s deed, which creates the transaction, in which case the land goes to whomever it names. The Netivot (60:19) distinguishes that one can buy a field on behalf of another, but he is unable to give his money and make someone else a creditor. In this case, even though the money came primarily from the wife’s family, the seller sold it to the couple together equally (as that is how it was presented).
Nowadays, it is common for one side’s parents to pay for most of a home and make it a present to both spouses. Therefore, the registry in the Tabu should be assumed to be actual, not symbolic.
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