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Shabbat Parashat Vaetchanan 5774

P'ninat Mishpat: A Lenders Right to Prevent the Sale of Collateral

(based on Beit Yitzchak, Choshen Mishpat 47)

[Reuven borrowed money from Shimon, and Reuven gave Shimon a place in the shul’s women’s section as a mashkon (collateral, in such a manner that the lender uses it during the loan period). Shimon’s wife began using the place. In the meantime, Reuven sold the seat to a bar metzra (a “neighbor”) of the seat, to be used not for herself but for her daughter-in-law. (A neighbor has first rights to buy his neighbor’s property, and if he is not afforded that right, he can force the buyer to sell it to him – see Choshen Mishpat 175.) Can Shimon remove the buyer from the seat? Consider that Reuven sold the seat to finance the wedding of his grandson, who is an orphan from his parents.]

 

The Rama (Choshen Mishpat 175:57, who argues on the Shulchan Aruch, ad loc.) rules that the possessor of mashkon rights can remove a buyer from that which was sold by the borrower (even to the extent that his ability to insure his loan can be handled in a different way). Even the Sha’ar Mishpat (175:6), who says that one who rents cannot remove a neighbor who buys property without first asking the renter if he wants to buy it, agrees that one who has the property as collateral can remove the buyer.

The question, then, is only whether the sale should be allowed to stand because it was done under the pressure of facilitating a marriage, as Geonei Batra (57) says that when one sells property to finance his daughter’s wedding, the rules of bar metzra do not apply. Perhaps that is only for a daughter’s wedding, not for a grandson’s.

The simple logic is that there is no difference between one’s daughter’s wedding and one’s grandson’s. Indeed, the halacha is that one may sell a sefer Torah in order to facilitate the marriage of an orphan boy, even though there is a machloket whether one can do so for the marriage of a girl (Chelkat Mechokek 1:1 – only a man is obligated to get married; Beit Shmuel 1:2 – a woman also has some level of mitzva to marry). Since one who barely has what to eat is not allowed to sell a sefer Torah (Rama, Yoreh Deah 270:1), we see that facilitating a man’s marriage is more important than one’s great financial need. Yet when one sells his property due to such need, the laws of bar metzra do not apply (Rama, CM 175:43). It follows that the laws of bar metzra certainly do not apply to one who sells in order to facilitate his grandson’s marriage.

Although we have seen that according to some, the possessor of mashkon rights exceeds those of a neighbor to buy, we do find that the Ra’avad says that there are no halachot of bar metzra for seats in shul. Therefore, when selling a seat in shul to facilitate a grandson’s wedding, all should agree that the possessor of mashkon rights cannot remove the buyer. On the other hand, in this case, Shimon actually needs the seat, whereas the buyer only bought it as an extra convenience. Still, it is doubtful whether that is grounds to prefer Shimon’s needs, and he cannot remove the buyer from the seat under these circumstances.

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