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Shabbat Parashat Matot 5782

P'ninat Mishpat: Granting a House to a Neighbors Son part III

(based on ruling 81093 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The defendant (=def) is a yishuv in the Shomron, which has only three lots slated for single-family homes. The right to build on them is to be raffled off among residents of def. The plaintiff (=pl) rents in the yishuv. Pl’s widowed mother owns a house adjacent to one of the lots, and pl wants to receive rights to it without a raffle because only if he lives there can he arrange things to best serve his mother’s needs. This would exercise his mother’s dina d’bar metzra (=ddbm) rights. Def counters that if someone receives a lot in such a manner, it will cause public accusations and acrimony.    

 

Ruling: [We have seen that ddbm (a neighbor’s right to buy an adjacent property before others) does not apply to def, as a seller, and that it is unclear if ddbm applies at all due to the fact that it is unfeasible to connect the two houses. Now we will discuss whether it applies to relatives of the neighbor.]

The gemara (Bava Metzia 108a) brings various opinions about whether ddbm can be used to remove someone from a field next to that of brothers who inherited and did not yet divide up a field. It is clear that once the brothers divide the property, only the one who owns the adjacent field can remove the buyer, not his brother (see Shulchan Aruch, Choshen Mishpat 175:5). The Rama (ibid. 34) says that when a neighbor is out of town, the buyer/seller inform beit din, who notify the neighbor’s relatives and give them a chance to buy it. It is clear from the Mordechai that the relatives can act only as representatives of the neighbor, not on their own. There are other sources that indicate the same idea.

The Aruch Hashulchan makes a logical distinction. Regarding fields, where the use is only commercial, only the neighbor himself and not his relatives, can make a ddbm claim. But regarding houses and places in shul, there is real advantage for people to be next to their relatives. Mishpatecha Y’Yaakov (II:16) takes the same approach regarding selling cemetery plots, saying that it goes first to relatives of an adjacent deceased person. On the other hand, in our beit din’s ruling 72110, regarding one who wanted to claim ddbm for his son to acquire an adjacent property, they posit that it is not commonly considered an advantage for people to live adjacent to their parents. We agree with this ruling in the case that the households will be managed autonomously, as here. Therefore, it appears that ddbm would not apply to pl as a son of the adjacent plot owner.

Would raffle winners also be able to overcome ddbm with the claim that they do not have another home like this to buy? The Rosh (Bava Metzia 9:34) cites Rabbeinu Tam as giving this as an argument for not applying ddbm to houses. The Terumat Hadeshen (340) distinguishes between cases where there are no other options in town and cases in which there are alternatives for the buyer that are less attractive, and the Rama (CM 175:49) rules this way. In our case, while there are only three plots for a single-family home, there are multiple homes that can be bought, and so this is not reason to deny ddbm to pl.

We will conclude the discussion next time.

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Nir Rephael ben Rachel Bracha
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