Shabbat Parashat Matot Masei| 5770
P’ninat Mishpat: The Division of a Home Paid for Unequally Between Husband and Wife(condensed from Mishpetei Shaul, siman 20 – part II of a p’sak by Harav Mordechai Eliyahu z.t.l. and Harav Shaul Yisraeli z.t.l.)
[Harav Mordechai Eliayhu and our mentor, Rav Yisraeli, sat for many years together on the
Case: A couple who are now in the process of divorce bought a home together, jointly signing a contract with the contractor before the home’s completion. They had an agreement to pay equally for the home, but in practice the husband contributed only 5,000 liras, and the wife paid more than her share. The husband, though, says that since they are both listed as owners, he should be entitled to half of its ownership.
Ruling: The gemara (Ketubot 93b) says that even if partners put in different amounts of money into an enterprise, if they did not stipulate, the profits are divided evenly. The Shita Mekubetzet explains in the name of the Ri Mitrani that this can make sense because sometimes one side has more business acumen than the other, causing the other to put in a larger investment, or sometimes one invests more due to friendship. Certainly we would follow any stipulation to the contrary that the sides arrived at.
It is far from clear that we should view the couple as partners. If two sides agreed to conditions of a partnership and one side significantly did not live up to his promise, the partnership agreement is not valid and each should receive according to the sum of his investment (see Shulchan Aruch, Choshen Mishpat 176:8). Furthermore, in this case, the parties were already feuding at the time of the deal and, regarding the acquisition of a home, where little has to do with business acumen, the logic to divide profits equally despite the different investment sums does not apply. Therefore, it is clearer that the couple should not divide the property evenly.
This is especially true in our case where the joint acquisition was not done with a kinyan. The contract with the contractor was just intended to map out the mutual obligations between the contractor and buyers, not to effect the kinyan. Even if we were to say that real estate should be transferred through the contract, against local law, here it does not apply before the home was not ready. Rather, the contract states what will be done so that the developer will transfer ownership to the buyers when they pay and it is ready, but he does so with the one who actually pays the money.
The regional court’s ruling that the husband’s 5,000 lira contribution should be returned linked to the CPI (inflation rate) is strange. Firstly, if it is viewed as a loan, as they indicate, most poskim rule that it should be returned without linkage. However, more importantly, since the money was given as part of the effort to buy the home, it should be considered a proportional acquisition of the property and thus should be returned to him according to the change in the home’s value from the time of the purchase. Rav Yisraeli said that this should be evaluated by an expert acceptable to both sides.
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