Shabbat Parashat Mishpatim 5774

P'ninat Mishpat: Responsibility for Collateral

[Last time we introduced the Rosh as a (very important) halachic authority and author but did not describe his responsa. The most unique element to the sefer is the arrangement of its responsa, which was done posthumously by his students, perhaps including some of his sons. Shut Harosh is the one book of responsa that is broken up into sections (klalim) and subsection (simanim), where all the responsa in one klal belong to one general topic. While many later volumes of responsa follow the order of the Shulchan Aruch, the Shut Harosh’s arrangement is unique.]

Reuven gave a house to Shimon as collateral for a loan before going abroad. When Reuven returned and wanted to pay his loan and claim back his house, he found that the partitions between his part of the property and his partner’s property were missing. Shimon said that he received the property without partitions and that if there were partitions, he didn’t want them because he was afraid the non-Jewish inhabitants would destroy them. He added that if there were partitions, it was Shimon’s father who had installed them.

The various contradictory claims that Shimon presented regarding the existence of partitions or lack thereof prove that one cannot take any of them seriously. His main claim is that he did not receive the partitions, which he supports by the fact that the document that stipulates the details of the collateral arrangement do not mention them. However, since partitions that are part of a property are considered part and parcel of the property, they are included unless the document explicitly states that they are excluded (witnesses to an oral stipulation would not suffice).

Top of page

Print this page

Send to friend