Shabbat Parashat Ki Tetzei 5782

P'ninat Mishpat: New Evidence on Possible Partnership

Case: 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.

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