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Shabbat Parashat Vayeira 5774

P'ninat Mishpat: The Law of Bar Metzra

(based around Maharashdam, Choshen Mishpat 273)

[Historical notes – The Maharashdam (Rav Shmuel Di Medina) (1505 – 1589) was the head of the rabbinical court of Salonica in the 16th century. At this time, Salonica, an ancient Greek city that had come under the control of the Ottomon empire, had just begun its status as a city with a Jewish majority. At some point in history, it was even the largest Jewish community in the world. This occurred as the Ottomons invited the expelled Jews of Spain to settle in the region. The Maharashdam, a contemporary of Rav Yosef Karo, was one of the most illustrious rabbis of this period, and his many published responsa have given him an important place in the study of halacha, especially that of monetary law. The question below came from another community, and the Maharashdam discussed indications without coming to a clear recommended ruling.]

Reuven owned a home, which was rented out to Shimon for two years, and during this time Reuven gave it to his daughter Sarah as a dowry. A year later, Sarah appointed Levi to sell the home. Levi told Shimon that he was going to sell it, and Shimon did not act immediately, but his wife said soon after its sale that they were interested in buying the home they were renting for themselves. The question is whether the law of bar metzra, whereby one who has a natural connection, usually as a neighbor, to property that was just sold can compel the property’s buyer to transfer it to the bar metzra at the same sale price.

In this case, there are several doubts as to whether the law of bar metzra applies. One is the opinion of Rabbeinu Tam that it applies to fields but not to homes. Another doubt is whether one whose connection to the property is that he is renting it is a beneficiary of the law. Yet another question is how long the renter has to offer to buy the field.

In general, we should point out that the law of bar metzra is a rabbinical innovation to give special rights to allow one with a connection to the property to acquire it. While the Rabbis attached to this law the pasuk of “you should do the good and the straight in the eyes of Hashem” (Devarim 6:18), that is not a halachically binding source. Therefore, in cases of doubt, we should not employ this rule when it is not clearly mandated, thereby uprooting the Torah-level law that the buyer has attained ownership of the property and cannot be forced to give it up. On the other hand, if the community accepted this law with a cherem (a ban), the efficacy of the cherem is like that of Torah law, and out of doubt one should not take the action of expelling the renter from the home to which he is entitled in abrogation of the cherem.

Furthermore, the efficacy of the kinyan (act of sale) that the buyer made is questionable because at the time of the sale, the renter still had the right to live there until the end of the rental period. In a case, then, that the sale can take effect only after time, it is not clear that the transaction was valid, even though the rental period will end by itself at the end of a defined period.
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