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Shabbat Parashat Emor 5774

P'ninat Mishpat: Long-Term Rental to a Guardians Relative

(based around Shut Hamaharit, Choshen Mishpat 1)

[The Maharit, Rav Yosef MiTrani, was born in Tzfat in 1573 to a very illustrious family. His father, the Mabit, Rav Moshe MiTrani, was old when Yosef was born and was not able to teach him for many years. Due to various plagues in Tzfat, Yosef left the city for Egypt and Yerushalayim and returned several times. When he was a young rabbi, he was sent to Turkey to raise money for the community of Tzfat, which was suffering from famine. The community of Constantinople (Kushta) embraced him, and he ended up staying there until his death, serving as chief rabbi (chacham bashi) for a few decades. Only a few of his several books have been published, the most prominent among them being a collection of his responsa (Shut Hamaharit), from which we will now begin to summarize rulings on monetary issues.]


Reuven and Shimon were brothers who jointly owned property. Before he died, Shimon bequeathed some of his wealth toward establishing and operating a yeshiva. A few questions arose regarding dealing with what was once the property of Reuven and Shimon as partners and was subsequently totally under Reuven’s control, serving as guardian in regard to Shimon’s part whose rights had been transferred to the yeshiva. Reuven rented out for an unlimited period one of the houses to the son of Levi, a third brother, with the rent, part of whose proceeds were for the yeshiva, to be determined by three appraisers.


The renting of the house to Reuven’s relatives was improper in a few ways. One is that regarding property that needs to be used to pay someone else, part of the process is announcing the availability of the property (usually for sale) during the course of 30 days (see Bava Metzia 35b). This is preferable to simply asking for an appraisal because it is possible that through competition, a better price will be attained. In this case, where the house was set aside for Reuven’s nephew, no one will inquire into renting it, knowing it is spoken for by someone whom Reuven favors. In this way, the yeshiva loses.

Also, if some future issue arises, Reuven will not pursue the matter against the renters as he should. Thus, just as a guardian should not sell property to himself due to a conflict of interest (see Pesachim 13a) or even an appearance of impropriety, so too he should not sell it to relatives who are close enough to him that he cannot serve as a witness in their affairs.

Another problem is that the renter is also a relative of the deceased Shimon and is among his inheritors. Thus, we can apply the halacha that one does not allow a relative to take care of the property owned by a minor out of fear that in the course of time, he will claim that the property is actually owned by him, as his inheritance portion of their joint relative (see Bava Metzia 38a). Even if one wants to write a document that states that the field is only being given to him as a guardianship, we are afraid that the document will be lost and people who know about the arrangement will die.

Therefore, the rental is void, and the house should be rented out to someone else. 
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