Shabbat Parashat Nitzavim Vayeilech 5771

P'ninat Mishpat: Complaints about the Sale of a Hekdesh Property

Case: A hekdesh (property set aside for philanthropic/religious use) was bought in Tel Aviv to be used for a shul for Iraqi Jews. The neighborhood turned into a commercial district, and the shul is used only for Yamim Noraim. Parts of the building have been rented out (proceeds paying the shul’s expenses) for a long time to businesses, including the plaintiff (=pl), which has “protected tenant” status. The hekdesh’s guardian died and beit din, which is entrusted with supervising hekdeshot, appointed a new one, who recommended selling the property on condition that a minyan will remain at the place during Yamim Noraim. Pl objects to the sale, questioning beit din’s authority to liquidate the hekdesh and claiming that, as an existing tenant, he should have been given first choice to buy the property. Although pl is offering less than the proposed buyer of the property, it claims that their bid is equivalent since pl will otherwise have to be compensated due to their protected tenant status.

Ruling: Beit din has authority to see to the needs of hekdesh, most of which it does by appointing trustworthy guardians to handle the day-to-day affairs. Beit din did its job by appointing a new guardian, accepting his recommendation to sell the property so that they can use the proceeds to buy a new property in a place where the intent of the hekdesh can be more properly realized. Maintaining an empty building was not the purpose of the hekdesh, and selling it is not liquidating the hekdesh, but handling it properly. If selling the property is invalid, then renting it out with protected tenant status (which is tantamount to sale) to pl would have been invalid, making pl’s whole case moot.

Pl’s main claim is that it has the status of a bar metzra, a neighbor of a newly sold property, who has the right to obtain the property at the same price that the buyer paid/ is willing to pay. While this has merit and pl can indeed meet the price of the proposed buyer within the next week, beit din, in seeing to the interests of the hekdesh, is not required to eliminate competition. It was proper that the guardian advertised the property in a respected business newspaper, which elicited much interest and enabled pl to find out as well. The laws of bar metzra are not intended to lower the seller’s profits (see Tur, Choshen Mishpat 175 and S’ma 175:7). Rather, it gives the neighbor the ability to put the buyer in the situation where he is supposed to go beyond the letter of the law and give the property to the neighbor if he meets his price. As of yet, pl has not done this. While pl claims that after expenses related to compensation, it will be more worthwhile for the hekdesh to sell to them, that is not called meeting the price. It is for those who are in charge of the hekdesh to make their determination as to whether it is the most worthwhile offer.

Pl’s demand to investigate the hekdesh’s file at beit din is rejected because at this point they are not a side to a dispute with the hekdesh.

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