Shabbat Parashat Shoftim 5772
P'ninat Mishpat: Access to a Sold but Illegal Storage Area(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)
Case: The plaintiff (=pl) lives in an apartment building in which the defendant (=def) owns one floor of commercial establishments and an underground parking lot. Pl bought a large storage room from def, located among the parking places, which she uses for clothes that she sells out of her house. At the time of the sale, the parking lot was open to the public, and this enabled pl to have deliveries made to the storage room. Now, def has closed off the parking lot and has told pl that if she wants to have vehicles enter, she has to rent a parking space. Def argues that pl cannot have rights to allow unloading of deliveries because the area of her storage room is slated by the municipality for parking and not for commercial storage. Def acknowledges that when they sold the area to pl, the area already had walls and a door that made its presumed use that of a storage room, not a parking space.
Ruling: From a legal perspective, one must distinguish between rights between pl in relation to the public and between pl in relation to def. The erection of a structure against the law does not generally provide the ‘owner’ with rights in it, since the authorities do not have to allow it to remain. On the other hand, in respect to the relationship between the seller and buyer of the illegal structure, the seller cannot withhold rights from the buyer based on the claim that the buyer does not have legal rights. After all, the seller received payment for the structure despite the legal limitations, and, therefore, he has to give it over appropriately, from his perspective, as if it were the sale of a legal structure. Thus, pl’s rights are not more limited, in relation to def, than that of a ‘legal’ buyer. The question is: does one who buys an area, for which he must traverse through the seller’s area, receive rights just for traversal by foot or even with vehicles.
Rabbi Akiva and the Chachamim dispute (Bava Batra 64a) cases where there is a doubt as to what rights the buyer received, including a case where someone bought a water hole in the midst of his friend’s field. Rabbi Akiva said that he bought the right to go in freely to take the water. The Chachamim state that he has to buy rights to a path to the hole because it was not included in the sale of the hole. The gemara (ibid. 64b) explains that they disagree on whether one who sells something is assumed to sell with ‘a generous eye’ or not. The Shulchan Aruch (Choshen Mishpat 214:1) rules that we assume that one sells with a generous eye. What that means in each case depends on the particulars of what is bought (see Shut Torah Chayim I, 31).
In our case, where the storage room was fitting and appropriate for commercial use, this should be assumed to extend to delivery by vehicle. If def wants to claim that the permission was limited to access by foot only, he has to prove this.
Thus, the ruling is that pl must be given access for delivery by automobiles.
Top of page
Print this page
Send to friend
This edition of
is endowed by
Les & Ethel Sutker
Louis and Lillian Klein, z”l