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Shabbat Parashat Mishpatim 5774

P'ninat Mishpat: Responsibility for Collateral

(based around Shut HaRosh 91:1)

[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).

It is also not clear why the presence of non-Jews in the property is relevant to Shimon’s refusal to accept the partitions because even if the non-Jews would cause damage to the property, Shimon would not bear responsibility for them, if indeed it was Reuven who brought them in as tenants. Rather Shimon would just have to return the materials of the now broken partition to Reuven. If, though, it was Shimon who brought the non-Jewish tenants to live in the house, then he is responsible for the damage they caused, as he should have known they would be dangerous [Ed. Note- presumably, in those times, it was not feasible for a Jew to sue a non-Jew for damage he caused.] Certainly, if Shimon is the one who took down the partition, he is obligated to rebuild it.  
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