Shabbat Parashat Vayeira 5781

P'ninat Mishpat: Compensating for a Governmentally Destroyed House – part I

Case: The plaintiff (=pl) built a private house in a yishuv (=def), with def’s financial assistance. Due to political considerations, authorities indicated they planned to destroy this and some other homes. Pl argues that def must compensate them (3,000 NIS per square meter plus a new plot to build on) for the following reasons: def committed to paying all of the families whose houses would be destroyed; def forced pl to not publicly protest the demolition, which prevented pl from obtaining broad support. Def counters that they never promised but only hoped that they would be able to compensate; it has proven beyond def’s means. Also, since pl openly threatened fighting the enforcement of the court order, which settlement experts said would jeopardize support for def, and def had to take pl to beit din and thereafter still complicated matters with some level of protest, they do not deserve compensation. Even if their peers, who followed the rules, get some compensation (mainly from a donor), pl should not. 

Ruling: If def, as a community, had obligated themselves, that would be binding (Shut Harashbash 564). However, after hearing several testimonies, no proof was presented that def obligated themselves, just that they expressed a desire to help as possible; key witnesses testified there was no outright obligation. Even pl never claimed to have received a first-hand assurance, claiming that it was rumored that one had been made. This then is not grounds to make def pay.

Regarding the claim that pl were prevented from fundraising (by means of public protest), there is much discussion around the Yerushalmi’s (Bava Metzia 5:3) ruling that one who prevents another from getting access to his money cannot be forced to pay. While the Rama (Choshen Mishpat 292:7) rules this way, the Netivot Hamishpat (292:13) rules that if the one who held the money benefitted from it, he must pay according to that benefit. This is on condition that the owner would have clearly been able to benefit from the money at the time (see Machaneh Ephrayim, Ribbit 41; Aruch Hashulchan, CM 292:20).

In this case, pl did not prove that they would have been able to raise money had they not complied with def’s approach. More importantly, in our case, as opposed to the Yerushalmi’s, def did not do anything unreasonable. Without getting into political calculations of what steps were most appropriate, it is fundamentally normal for a community to do what their experts believe is in the community’s best interests and force individuals to go along with it (see Shut Harashba VII:340). In this case, the members of def voted after hearing the recommendations of experts who support settlement growth, as to how to deal with the situation. If an unfortunate consequence of that is that an individual like pl loses the opportunity to gain financially, that does not obligate def to compensate. Therefore, even those who rule that in certain cases of preventing gain there is at least a moral obligation to pay, here there would not be.

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