Shabbat Parashat Pinchas 5782

P'ninat Mishpat: Granting a House to a Neighbor’s Son – part II

Case: The defendant (=def) is a yishuv in the Shomron, which has only three lots slated for single-family homes. The right to build on them is to be raffled off among residents of def. The plaintiff (=pl) rents in the yishuv. Pl’s widowed mother owns a house adjacent to one of the lots, and pl wants to receive rights to it without a raffle because only if he lives there can he arrange things to best serve his mother’s needs. This would exercise his mother’s dina d’bar metzra (=ddbm) rights (see below). Def counters that if someone receives a lot in such a manner, it will cause public accusations and acrimony.    

Ruling: [We saw last time that ddbm does not apply, according to strict law, to def, as a seller and that they are not required to go beyond the letter of the law when it causes damage (mainly, quarreling). We now look at the question of whether, if pl will sue the eventual buyer based on ddbm, he would be right.]

One reason that ddbm might not apply is that the two properties are on different levels so that it is not possible to combine the houses (the gardens can be joined). The gemara (Bava Metzia 108b) says that if the two fields in question are separated by a boulder, ddbm does not apply. Based on this, Rabbeinu Tam says that ddbm applies only to fields, which lend themselves to being connected, and not to adjacent houses. The fact that it is nice to have two adjacent homes does not suffice for the special institution of ddbm. The Ramah holds that ddbm applies even to houses but only if they are already attached at the time of the sale. The Rashba (Shut II, 145) says it applies even to houses that have the potential to be connected in the future, but on the other hand, this is only if the plan is to put family members in the second house. The Rid (Shut 38) posits that the logic of ddbm is stronger for homes than for fields, and it is even enough that the neighbor wants to ensure he will approve of his new neighbor. The Shulchan Aruch and Rama (Choshen Mishpat 175:53) follow the opinions that ddbm applies to homes. In the Beit Yosef, he posits that the houses do not need to be connected if they can serve one family unit (e.g., one is for living, and one is for relevant storage; a fence can be put around the two).

In this case, pl and his mother will operate separate households, and therefore ddbm would appear not to apply. The Aruch Hashulchan (CM 175:60), regarding ddbm for seats in shul, says that it applies even though each person has his own seat because he wants to have close family members next to him. Again, it is unclear if this will apply to our case if they will live separately. While pl explains how important his help is for his mother, it is likely that the help he is talking about could be done in the same manner if he lived several houses away. The joining of the gardens probably does not make a difference because the use of the gardens is ancillary to that of the home. So, on this point, it is unclear whether pl would have ddbm through his mother.

We continue next time with other elements of ddbm in regard to an eventual buyer.

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