Shabbat Parashat Eikev 5777

P'ninat Mishpat: Unfulfilled Raffle Prize – part IV

Case: The plaintiff (=pl) spent 2,050 shekels on raffle tickets sold by an institution (=def); the first prize was a furnished four-room apartment. The drawing was held in Feb. 2012, and pl won the first prize and was supposed to receive the apartment within six months. However, the apartment was part of a property owned jointly by def and Reuven. They needed to have a redrawing of the property approved and then build an extra room. Due to a dispute between def and Reuven regarding stairs leading to the apartment, municipal permission def received was not usable, and, as of 2015, the apartment is still not completed or transferred to pl’s name. Pl demands that def transfer ownership to him and either build another room and provide furniture or pay their costs. Def responds that they are bound only to the raffle’s takanon (regulations), written before the drawing. The sides also disagree on who should pay the significant capital gains payment (119,860 shekels) on the apartment for permission to expand it. Pl also demands compensation for the rent that they did not receive during the three years that def withheld rights to the apartment.

Ruling: The takanon says that the raffle winner will have to pay various taxes but that def has to pay for expenses related to the apartment’s change of taba (municipal plans). Each side has a reasonable claim on the matter, as capital gains is a tax, but is one that is levied due to the changes in taba, as the government charges for permission to have a bigger apartment. When the language of the contract is unclear, we say that the one who needs the contract in order to obtain something has the lower hand. Since we have already decided that pl receives the property, this tax is naturally for him to pay.

Regarding rent loss, pl does not have a valid claim for a few reasons. [In a previous segment] we explained that we understand the line in the takanon that the winner does not get the apartment until it is complete as relating to an issue like this. In other words, ownership is not transferred to pl right away, and therefore he does not have claims on lost rent. In general, there is a machloket whether one who prevents the owner of a home from renting it out has to pay for lost revenue. Tosafot (Bava Kama 20a) says that this is gerama (indirect damage), and there is no payment. The Rambam (Chovel 7:7) implies that there is payment. However, since the major issue in which we agreed with pl is that the obligation to transfer ownership should be carried out, that needs to be done, but that does automatically give full rights before it is accomplished. In this case, the matter is even clearer because there has not been access to the apartment due to the disagreement with Reuven about the stairs, and therefore it has not been feasible to rent it out.

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