Shabbat Parashat Ki Tetzei 5778

P'ninat Mishpat: Taking Part in Financing Road Building – part I

Case: In 2015, the defendants (=def) obtained an extra-large plot of land on which to build their home. In 2016, some of def's neighbors petitioned their yishuv for financing for a temporary road to their section of the yishuv, but they were only able to receive partial financing. With the guidance of a rav, it was decided that the organizers (=pl) would levy a tax on members of the neighborhood to cover expenses. Pl have decided that def should be taxed like two households, since they built their home on two adjacent plots of land, just as def signed an agreement with the yishuv to pay double for infrastructure charges for electricity and water. Their contract also says that they have received two plots. Def argues that they received only one big plot, like many others in the yishuv, and that they paid extra for infrastructure and signed the contract as written only to avoid machloket with the yishuv. Furthermore, def argues that pl, consisting of only half the residents of the area do not have authority to obligate neighbors to pay and that indeed only the yishuv as a whole can do so.

Ruling: We accept that def obligated themselves only to the yishuv and for permanent infrastructure. Nevertheless there are things that neighbors are naturally obligated to contribute to, such as security matters (Bava Batra 7b). The Hagahot Maimoniot (Shecheinim 6) extends this to all moderate joint needs. The Shulchan Aruch (Choshen Mishpat 161:1) rules that a neighbor can be forced to take part in financing matters only if they represent great need or are done by common practice. The most likely explanation is that this is a Rabbinical institution made with the assumption that usually neighbors benefit from joint projects, and so they should all pay for that future benefit (see Divrei Malkiel I:96). The Netivot Hamishpat (264:7) distinguishes: the neighbor can be forced to pay if it is to be used to improve the value of their properties, not if it is to be used only to remove a problem.

The Mitzpeh Shmuel derives from a tosefta, which talks about of forcing one another, that even an individual neighbor can force another, and that a majority of residents is not required. On the other hand, the Rama (CM 163:1) seems to require a majority. The Divrei Malkiel (I:35) answers that a majority is required when it is questionable whether there are advantages to the actions, but when it is clearly beneficial and there is just  a question of forcing participation, a majority is not needed.

There is a dispute in this case whether the need for the road is a great need, and it would make sense then that a majority would be needed to determine the matter. However, we believe that it is clearly a great need and additionally that the common practice is to build roads such as this. Therefore, def can be forced to pay.

Next week we will discuss whether def is to pay like the owners of one or two plots of land.

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