|
Shabbat Parashat Ki Tetzei 5782P'ninat Mishpat: New Evidence on Possible Partnership(based on ruling 79009-appeal of the Eretz Hemdah-Gazit Rabbinical CourtsCase: Twenty years ago, the plaintiff (=pl) gave his brother (=def) half the sales price of the apartment def bought. Def has returned money that exceeds that amount. Pl claims that he had bought half the apartment, and def’s payments were for rent on pl’s half. Def claims that pl had lent him the money with fixed interest payments and no heter iska, and Halacha requires that pl return the interest taken. Def points out that the apartment is in his name alone in the Tabu with no he’arot azhara (rights in the property) for pl. Pl responds that this was done to not compromise def’s ability to receive a mortgage. Pl also produced an unsigned document that contains indications that he had bought half of the apartment. Original Ruling: Pl did not provide enough proof he had acquired partial ownership. The document is not only unsigned, but it is also undated, does not state the property’s details, contains pl’s handwritten additions, and is full of significant contradictions. Under circumstances of doubt, def does not have to continue paying, since he has already covered the loan’s principal, after which ribbit should not be given if it is a loan. On the other hand, def is not entitled to receive return of possible ribbit given because of the possibility that pl is correct and because the long time after the payment without asking for a return indicates mechilla of any ribbit given. Because it is possible, but not certain, that def bindingly admitted to owing 50,000 NIS, beit din ruled by compromise that pl will receive 16,000 NIS. Appeal Claims: After the ruling, pl presented evidence that he had not presented during deliberations. 1) A WhatsApp message that def admitted to owing pl 350,000 NIS. Def counters that: most of that money was toward principal payments, which have been made; pl provided only part of the message; an admission out of beit din is not binding; def’s wife (who is a part owner) did not make any admissions; it was an offer beyond the letter of the law in order to try to preserve family relationships. 2) The transcript of a phone conversation in which pl admitted there was a written agreement which discusses the apartment being split between the sides if def did not return the money within 5 years, that the monthly payments were rent and not interest, and that they had decided to adopt a third brother’s idea, which was for a partnership. Def pointed to inconsistencies in the way the transcript was presented and that the referenced agreement lacked clarity. Appeal Ruling: The Shulchan Aruch (Choshen Mishpat 20:1) rules that evidence that was available before the ruling cannot be brought after the ruling. Pl did not claim lack of prior access to this evidence. Even if we accepted the evidence at face value, it does not consist of full-proof corroborations of the totality of pl’s claims. Because the WhatsApp message was done in the context of negotiations, it is not taken as a formal admission. Def is correct that the document to which the phone conversation refers does not conclusively indicate a full partnership. Therefore, pl has not proved that beit din’s ruling was a mistake, and the ruling stands. Top of page
Print this page
Send to friend
|
We daven for a complete and speedy refuah for: Nir Rephael ben Rachel Bracha Arye Yitzchak ben Geula Miriam Neta bat Malka Meira bat Esther Together with all cholei Yisrael Hemdat Yamim is dedicated to the memory of: for our homeland Rav Shlomo Merzel z”l
Mr. Shmuel & Esther Shemesh z"l Sivan 17 / Av 20 Mr. Moshe Wasserzug z"l Tishrei 20 ,5781 R' Eliyahu Carmel z"l Rav Carmel's father Iyar 8 ,5776 Mrs. Sara Wengrowsky bat R’ Moshe Zev a”h. Tamuz 10 ,5774 Rav Asher & Susan Wasserteil z"l R' Meir ben Yechezkel Shraga Brachfeld z"l & Mrs. Sara Brachfeld z"l Tevet 16 ,5780 R 'Yaakov ben Abraham & Aisha and Chana bat Yaish & Simcha Sebbag, z"l Rav Yisrael Rozen z"l Rav Benzion Grossman z"l R' Abraham Klein z"l Iyar 18 ,5779 & Mrs. Gita Klein z"l Av 4 Rav Moshe Zvi (Milton) Polin z"l R' Yitzchak Zev Tarshansky z"l Adar 28, 5781 Nina Moinester z"l Nechama Osna bat Yitzhak Aharon & Doba Av 30, 5781 Rabbi Dr. Jerry Hochbaum z"l Adar II 17, 5782 Mrs. Julia Koschitzky z"l Adar II 18, 5782 Mrs. Leah Meyer z"l Nisan 27, 5782 R' Yitzchak Eliezer ben Avraham Mordechai Jacobson z"l Elul 15 Hemdat Yamim |