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Shabbat Parashat Masei 5774

P'ninat Mishpat: Disqualifying the Sale of Public Property

(based on Beit Yitzchak (Shmelkes), Choshen Mishpat 61)

[Reuven bought a piece of land on the outskirts of the Jewish cemetery of Butchatch that was owned by the chevra kadisha. The sale was authorized at a meeting of the chevra kadisha that was attended by only around half of its members and without the head of the community. When word of the sale got out, the head of the community and many in town protested, and now the sellers want to back out. Several grounds were raised for cancelling the sale. We will discuss only those which the Beit Yitzchak agreed disqualified the sale.]

 

There are times when decisions have to made by a majority of the assemblage of all those authorized to vote (see Beit Yosef, Yoreh Deah 228). This is true in regard to the outlay of money, because regarding money there is generally a need for a majority that one can count as part of the whole, with the voting of the full Sanhedrin being a precedent. Regarding rulings on religious matters, where we follow majority rule more broadly, a simple majority is sufficient. Regarding matters dealing with land, the K’tzot Hachoshen (280) says that a simple majority suffices, whereas the Netivot Hamishpat (46:8) says that as with any other money, a special majority is needed. [The Beit Yitzchak continued by bringing a difficult technical proof that the Netivot Hamishpat is correct that a special majority is needed.]

Reuven claimed that it is considered as if all the members of the chevra kadisha took place in the vote because they were all invited to the meeting, and thus whoever did not come is considered to have authorized those in attendance to represent them. However the Knesset Hagedola (Choshen Mishpat 23:32) said that this is true only when those who did not come explicitly authorized those who attended. In this case, not only did people not authorize others but they did not even know what was on the meeting’s agenda.

The requirement that the head of the community be involved is also a binding requirement according to the law of the land that the person in charge has to agree to land transfer. Money is also not a sufficient form of kinyan in a case where the transaction was not recorded in the land registry.

Contrary to Reuven’s claim, the requirement of a kinyan is not waived due to the fact the public is involved. That concept exists regarding decisions on taxes and the hiring of workers, not regarding the transfer of land. An exception is when the seven leaders of the community decide to invoke their power to uproot individual ownership within the community, not when other members of the community sell community property.

It is also correct that one is not allowed to sell land that belongs to a cemetery (see Magen Avraham 153:12) so that there should not be a shortage of burial ground. The cemetery owners may sell it to someone else so that the buyers can bury there, but it cannot be sold for another purpose unless the seven leaders of the community are involved.

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