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Shabbat Parashat Bechukotai 5778

P'ninat Mishpat: Obligation to Enable Registering a Purchase part II

(based on ruling 76084 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiffs (=pl) bought an apartment from the defendants (=def) in a project that is handled by a chevra meshakenet (= cm; developers who bought rights to buildings from the government and are responsible for registering changes in ownership). Pl paid and moved in a few years ago, but def has been unwilling to sign a form requested by cm, which states that the sellers have no further claims against cm regarding the apartment. Due to this, cm has refused to register the apartment in pl’s name. In the first hearing, def said they want to sue pl for the damages of delaying payment and informing the authorities of the sale too early. They implied that if paid for damages, they would sign the form. In the second hearing, def claimed that signing the form will damage them, but they failed to coherently explain the nature and source of the damage. Pl claim that def is required, according to their contract, to sign any document needed for transferring ownership. The form in question is a standard one, def have never explained their refusal to sign, and it does not make sense that they should have claims regarding an apartment that they sold years ago. Def say that there is no legal obligation to sign documents that cm presents without justification and now claim that they are part of litigation against cm that has not been resolved. Pl points out that the contract states that there are no outstanding legal matters with the apartment. Def did not follow up after the hearing with documentation about the litigation, as requested. Pl demands 3,000 shekels per day that def refuse to sign the form.    

 

Ruling: Last time we saw that the sale of the apartment between pl and def was final.

Is the agreement in par. 7.1 of the contract that def will sign documents to carry out their obligations binding and relevant to our case? While it is not clear that cm should be requiring this document, as pl admit, once they do, it makes the document necessary for pl and thus incumbent upon def.

In general, an obligation to perform an action (kinyan devarim) is not binding. However, the Shulchan Aruch (Choshen Mishpat 243:9) rules that if one promises one who buys from him that he will write a document to confirm the sale, once the sale goes through, he is required to write the document. R. Akiva Eiger (ad loc.) does not understand why this is not a kinyan devarim. However, Rav Shimon Shkopp (Gittin 8) explains that it is not an independent separate obligation, but rather it naturally goes along with the outcome of the sale. This applies to our case as well.

Can one enforce this obligation to sign the document (e.g., by niduy), or is it just grounds for voiding the sale? Regarding the obligation to register a sale in the Land Registry, Emek Hamishpat (16) cites Rav Elyashiv as saying that it can be enforced. Furthermore, there is a machloket Acharonim whether standard business practices (such as an obligation of kinyan devarim) are binding according to Halacha (see Piskei Din Rabbaniim XIV, p. 343). There may also be a halachic obligation for def to sign under the rubric of hashavat aveida (helping another avoid monetary loss). We are of the opinion that beit din has the right and responsibility to enforce such obligations.

We will continue with the question of def’s claims to be exempt from acting in this case.
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