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Shabbat Parashat Miketz 5776

P'ninat Mishpat: How Do Time-Share Partners Deal with Damage to Property?

(based on Shut Chatam Sofer, Choshen Mishpat 179

Case: Reuven and Shimon jointly owned a house with an upper level and a lower level. They divided their rights in such a way that they switched use of levels every two years. A fire has made the upper level unusable. Who has to pay for the losses caused by the fire?

 

Ruling: The gemara discusses in several places the situation of a partnership that turns into “time-sharing.” One (Bava Batra 13a) is about brothers who inherited a servant or a non-kosher animal (they both cannot be divided physically). If one brother is the firstborn, he gets to use the inherited matter two days per every day of the other brother. The Ri Migash learns from this that whenever it is not possible or not desired to divide the property or to offer that one should buy it and reimburse the other one, the division is based on time-sharing.

The agreement to share time is a full-fledged division of the property and, once implemented, it is considered a kinyan (an enforceable transaction). According to the opinions that there is bereira (retroactive determination), after they split it up, it is considered as if these were always the mutual rights. According to the opinion that there is no bereira, it is considered that they sold each other their equal ownership rights in a manner that created time-based rights of peirot (practical ownership), even as they maintain equal fundamental ownership (kinyan haguf). The Ran says that one is able to transfer rights to a property for a certain amount of time, and during the time of each, it is his, along the lines of one who receives something with the stipulation of “my property goes to you, followed by someone else.” 

The gemara (Gittin 42a) says that if a person with the status of half servant/half free man was damaged, if it occurred on a day when he works for himself, he receives the money, and if on a day in which he works for his master, the master receives it. In contrast, if he was killed, so that there is total loss, the special payment is split between his inheritors and his master, regardless of what day this occurred.

Let us apply these principles to our case. Regarding the state of the ownership and refurbishing of the house, which is a matter that is classified as “total loss,” we look at Reuven and Shimon as partners and say that they have to join together to pay for damages. Regarding the temporary division of time to use the house, everyone loses according to the time that was theirs. In other words, they keep to their schedule of time-sharing, even if one will lose more time than the other. This is simple, even though it contradicts the S’ma, who raises theories as to assumptions between parties who exchange objects for time.

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