Shabbat Parashat Mishpatim 5786

P'ninat Mishpat: Agricultural Water Rights – part I

Case: The plaintiff (=pl) and the defendant (=def) have agricultural fields near a yishuv, and there is a limited water supply. In a meeting of most of the field owners (pl was invited but did not attend), they made a schedule of watering times per region. Pl often has his pipes open at times that contradict the schedule, and often, def shuts them after informing pl. Pl rejects the intention and authority of the field owners at the meeting to make or enforce rules on those who do not agree and claims the meeting was just a step to create good will. Pl argues that since his pipes and water are his own, def has no right to close them, as a member of the local council wrote to pl. Pl demands compensation from def for the damage the lack of water caused his crops. Pl also points out that at some point, def ignored the “rules,” so that even if the rules were once binding, def cannot invoke them. Def responds that his use was minor, for a critical need, and with the blessing of the local council.

Ruling: Are the field owners’ decisions binding?  The gemara (Bava Batra 9a) grants a local commercial group the ability to make binding rules and penalize those who do not follow them. This is accepted as Halacha (Shulchan Aruch, Choshen Mishpat 231:38), and it applies even if it causes poverty to a group member (Pitchei Teshuva ad loc. 4). Although many (see ibid. 6) say this is true only if all the members are present at the meeting, the Aruch Hashulchan (CM 231:27) says that if one is invited and does not come, he forfeits his voice.

There is also a machloket Rishonim if a majority decides the matter or whether it requires unanimity (see Mordechai, Bava Batra 480). The Rama (CM 2:1) says we follow the opinion that is locally practiced. Rav Yaakov Ariel explains that the opinion that follows the majority is based on the fact a society must be able to come to decisions to navigate between different interests, and the interests of the majority are most important. Based on this approach, the Aruch Hashulchan makes great sense that if someone does not come, the others can decide without him, because otherwise an individual has a practical veto by not coming.

The Even Haezel (Mechira 14:11) reasons that a majority can suffice only when the group is a city, whereas a commercial group requires all to be present. However, we conclude that pl is obligated by the decision of the meeting. First, the Even Haezel is difficult and is apparently contradicted by the Rosh (Bava Batra 1:33), who equates the two categories. Also, the field owners should be considered like members of a city because they form an entire geographical grouping. This is strengthened by the idea that a policy must be devised for a crucial resource such as scarce water. The fact that the local council sent a representative who apprised his colleagues is also a reason to consider the decisions binding. Although the gemara (ibid.) says that such decisions need the approval of the area’s “important person,” there is no indication that such a man existed in that place.

We will continue next time with other elements of the dispute.

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