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Shabbat Parashat Tzav 5779

P'ninat Mishpat: Sharing the Expansion Area

(based on ruling 71031 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) and the defendant (=def) are neighbors in a building. Both of them and two others presented the municipality with plans for all of them to expand their apartments; pl and def were to also get 20 sq. meters of the floor space at the building’s entrance for storage rooms. Def’s plans, which pl signed, has his storage area turning into a room, attached to his apartment by internal stairs, and also has him getting an actual storage room next to pl’s planned storage room. Pl said that he did not want to agree to this joint plan, but did so because at a meeting at the municipality, he was told that if he opposed it, the plans as a whole would be rejected, and everyone would be delayed for years. Note that pl tried to have a beit din hearing, in which he would express his rejection of the plan, before the hearing at the municipality, but def delayed the beit din hearing until afterward. Pl complains that it is unfair for def to receive both the room and a storage room, and so pl should receive a second storage room. Although by-laws do not allow one owner to receive more than 20 sq. meter of storage room, one of the other neighbors has agreed to have the room in her name, yet allow pl to use it exclusively. Furthermore, pl demonstrates that around 7% of his storage room is unusable due to a support wall.

 

Ruling: Beit din cannot and will not require def to transfer ownership in a storage room to a neighbor who neither wants it for herself (she received special rights to the roof instead) nor is a litigant in these proceedings.

Pl wants to back out of the agreement to def’s plans based on the claim that he was forced into it by the circumstances. In general, when one agrees to sell something under pressure, the sale is valid (Shulchan Aruch, Choshen Mishpat 205:1). This applies here where he gave and received in the agreement. While such a person is able to make a moda’ah (disclaimer) before agreeing, that works only if the witnesses to the moda’ah are aware that he was improperly forced (see ibid. 12). Furthermore, in this case, the pressure was not directly applied by def, but was a need of pl to not have his request for expansion seriously delayed.

Pl complains that had def not avoided beit din, he never would have been able to present his plans to the municipality. However, this is a valid claim only if the municipality is not the right place to argue about the propriety of the plans. We believe that on such matters, the municipality has halachic right to decide (see Tzitz Eliezer XI:93). Def did not do anything wrong by trying to maximize his building rights, and pl was capable of likewise presenting his needs and desires to the municipality.

Regarding the wall that takes away from the space envisioned for pl, this indeed is an agreement based on a mistake. Since it is impractical to change the exact locations of the mutual storage rooms, beit din requires def to compensate pl for the decrease in value due to the support wall. It is too expensive to bring a professional appraiser, and so beit din estimates that def must compensate pl the sum of 3,000 shekels.

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