Shabbat Parashat Devarim 5777

P'ninat Mishpat: Unfulfilled Raffle Prize – part II

Case: The plaintiff (=pl) spent 2,050 shekels on raffle tickets sold by an institution (=def); the first prize was a furnished four-room apartment. The drawing was held in Feb. 2012, and pl won the first prize and was supposed to receive the apartment within six months. However, the apartment was part of a property owned jointly by def and Reuven. They needed to have a redrawing of the property approved and then build an extra room. Due to a dispute between def and Reuven regarding stairs leading to the apartment, municipal permission def received was not usable, and as of 2015, the apartment is still not completed or transferred to pl’s name. Pl demands that def transfer ownership to him and either build another room and provide furniture or pay their costs. Def responds that they are bound only to the raffle’s takanon (regulations), written before the drawing. Accordingly, if they are unable to complete building the apartment, they need to pay the raffle winner the amount of money they spent on the apartment or perhaps sell their portion of the property and give pl the proceeds after subtracting expenses.  

Ruling: [Last time, we saw that the takanon can limit pl’s rights even though he did not see it. Now we will analyze what is included in the takanon.]

The agreement between def and Reuven is not directly relevant because the takanon preceded the agreement and does not refer to it.

The takanon foresaw possible problems in the redrawing of the property. Par. 5A states that the winner will not receive the apartment until the redrawing is approved. Par. 5B says that if it cannot be redrawn, the apartment will be sold, and the winner will receive the proceeds minus expenses.  Par. 5D states that if a building permit to finish the apartment is not received within 30 months of the holding of the raffle, the winner will receive the price of the apartment as is recorded in the purchase contract.

Sub-par. B&D are apparently written to protect def if they are unable to fulfill their commitment to provide the apartment as advertised. There is an apparent contradiction between them as to what the raffle winner receives in lieu of the apartment. In general the halacha is to give precedence to the final appearance. However beit din accepts the following reconciliation of the provisions, which is better than to choose one of the two provisions and reject the other (Shulchan Aruch, Choshen Mishpat 42:5). B is referring to a case where the attempt is rejected, in which case, the property is sold; D is referring to one in which the process is delayed, giving def a possibility of avoiding legal complaints by paying the apartment’s value.

In this case, the redrawing was accepted by the municipality. The problem is that due to a dispute with Reuven, Reuven appealed it, but his appeal was rejected, even though the exact legal outcome has not been worked out. In such a case, par. 5A, which authorizes the transfer of ownership to pl, is the pertinent one. Def should not be spared of doing it by the problematic agreement with Reuven which they made after the raffle takanon was approved.

We continue next time with the implementation of the sale.

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