Shabbat Parashat Behaalotcha 5774
P'ninat Mishpat: Partners in Practice, but Not in the Documents(based on Shut Maharit, Choshen Mishpat 29)
[Yaakov and Yitzchak had a partnership in a business, as was well known to the community. In that framework, they jointly bought a large house from the duke, in which each lived and the business ran. Yaakov was married but did not have children; Yitzchak had one daughter. Yitzchak died, and Yaakov continued the business, giving Yitzchak’s part of the profits to his widow. At some point, Yitzchak’s son-in-law came with a claim that the house belongs to his wife (Yitzchak’s inheritor) and him, with the proof being that the sales contract of the house from the duke is in Yitzchak’s name alone.]
It is clear that Yaakov has rights to half of the house, due to his chazaka in it (the indication from his occupancy of the property over a long period of time). One might counter that since the property is written in Yitzchak’s name, Yaakov should need all the criteria of chazaka. Regarding chazaka, we find that if the one who is the known original owner and the one claiming that he acquired part of it are living under one roof, the latter does not have a chazaka (Bava Batra 29b). The Rashbam and the Ramban argue whether the chazaka is lost only when the original owner shares the premises with the one who claims chazaka or even when he just passes by. However, in this case, it seems that Yitzchak shared the premises. Nevertheless, regarding those parts of the house where Yaakov lived privately, without Yitzchak’s involvement, chazaka should work. Regarding the areas of the house that were rented out to others, it is well known that Yaakov would receive his share of the money as a partner.
Furthermore, even if Yaakov did not have any area to which Yitzchak did not have entry, Yaakov still has chazaka. The aforementioned gemara is talking about a case where one party was the original owner and now a second one is claiming that he received it from the first, in which case it is necessary to show that the first one’s lack of protest is significant. In this case, though, the claim is that they were partners from the beginning, and that just needs to be substantiated by evidence of joint usage.
The son-in-law’s main claim is that the fact that only Yitzchak’s name is on the contract is a proof that he was the sole owner, but there are points that neutralize this claim. It is not the practice of noblemen in such cases to write two names. They regularly claim back the property after the death of the buyer’s children and prefer not to have to deal with more than one family. There is halachic precedent to give a non-literal interpretation to a document if the alternative interpretation conforms to common practice (Bava Metzia 104a). In a case where there is a presumption of people of partnership, an understandable use of one name in documents is not a disproof. We have precedent in the halacha that a brother who handles the estate’s affairs has to prove that documents in his name are his specifically and not the other inheritors’ (Bava Batra 52a).
One should also not claim that the duke had in mind to transfer rights only to one, because it suffices that at the time of the acquisition, the one who did the acquiring did so on behalf of the two of them (see Bava Kama 102b and Bava Metzia 10a).
Therefore, Yaakov is assumed to be a joint owner of the house along with Yitzchak’s daughter.
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Louis and Lillian Klein, z”l
to the memory of:
Yechezkel Shraga Brachfeld
Rabbi Yosef Mordechai Simcha
ben Bina Stern o.b.m
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21 Adar I, 5774
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