Shabbat Parashat Vayechi 5773
P'ninat Mishpat: Closing Agreement Under Pressure to Neighbor’s Expansion(from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)
Case: The plaintiff (=pl) and defendant (=def) are neighbors in an apartment building who jointly planned the expansion of their apartments. Due to legal and technical considerations, it was possible for def to expand more than pl, but a disagreement arose regarding rights to a certain area. In the midst of negotiations, def presented his plans for the two of them to the municipal regulatory board, with the area in question apportioned to him. Pl raised an objection to the plans. At a meeting at the municipality, an official warned pl that if he did not sign on to the plans that def submitted, his building expansion would not be approved, and it takes significant time until it would be considered again. Pl signed the plans, but later he claimed that he did so under duress and presented witnesses that he said in advance that he would sign only under duress.
Ruling: At first glance, pl is bound by his signature on the plans. In general, an agreement under duress to sell is valid in regard to sales, although not for presents (Shulchan Aruch, Choshen Mishpat 205:1). Regarding sales, we say that under the circumstances, one realized that agreement is in his best interest. Since pl also gained from the approval of the plans, this case is like one of a sale.
Informing witnesses that he will not be sincere in his agreement is called making a moda’ah (disclaimer) and this can work in cases of duress. However, that is only when the seller can prove there was unfair duress. The Shulchan Aruch (ibid. 12) says that duress that comes from his own needs does not count in this regard. The classic example is one who is forced to sell property because he wants to buy other property and needs the cash. In our case, the duress was that pl needed approval for his plans, which is thus related to pursuing his own needs. Therefore pl’s signing on the plans obligated him.
It turns out that pl had, previous to def’s presentations of the plans, tried to take def to beit din to rule on this dispute. Apparently, def stalled in signing an arbitration agreement until after the plans were approved so that there would, in effect, be nothing upon which to adjudicate. In order that def should not gain from this trickery, it is worthwhile to determine what beit din would have decided.
It appears that beit din would not have prevented def from making his request before the municipal board. This is because municipal forums are not standard adjudication, where one is to go specifically to beit din. Rather, it is a case of the sovereign authority deciding on the right to build in a non-legalistic setting. This is similar to the valid matter of “courts” within trade societies (see Pitchei Teshuva, CM 3:2). Also, in this case, def was not taking something that belonged to pl, but that they each were trying to be first in getting something approved by a third party. If that party has reasons to give to def that which pl is not able to get, he may make efforts to secure what he can.
Top of page
Print this page
Send to friend
This edition of
Yechezkel Shraga Brachfeld
is endowed by
Les & Ethel Sutker
Louis and Lillian Klein, z”l