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Shabbat Parashat Masei 5782

P'ninat Mishpat: Granting a House to a Neighbors Son part IV

(based on ruling 81093 of the Eretz Hemdah-Gazit Rabbinical Courts)

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. Def counters that if someone receives a lot in such a manner, it will cause public accusations and acrimony.    

  

Ruling: [We will now look at some final issues about ddbm in this application.]

Since ddbm is based on doing that which is “straight and good” for the neighbor (matzran), the Rabbis did not want to apply ddbm in a manner that harms the seller. The gemara (Bava Metzia 108b) gives examples, including: the seller sold many fields to one person; the buyer gave more accepted coins than the matzran. The latter is an example of a damage that is not an objective, financial one. In our case, def’s concern, that giving one person advantages will cause discontent, appears to be a legitimate damage to them as sellers. A previous ruling (72110) posited that if discontent comes from the populace’s ignorance about ddbm, this is not called damage, and the people should be taught what the right thing is. We do not accept this as a broad thesis because ddbm is a beyond-the-letter-of-the-law enactment with many exceptions and there were communities led by great rabbis who did not employ or limited it (see Maharshdam, Choshen Mishpat 299). Although we are not suggesting to cancel ddbm, we are saying that these factors cause us to take seriously the damage to def from the expected acrimony. On the other hand, whereas the acrimony is enough to have def carry out the raffle, it does not prevent pl from successfully suing the one who won the raffle, as then no one can have complaints against def. In this case, there is no concern that people will not enter the raffle because of it, so that def will not lose.

What do we do it when there is doubt whether ddbm applies? The Shulchan Aruch and Rama (CM 175:45) rule that in the case of doubt, we do not apply ddbm. However, the Rama posits that even in the case of doubt, the seller should sell to the one with the status of possible matzran. If there is a question between a definite and a possible matzran, the definite one is preferred (Sha’ar Mishpat ad loc. 5). In our case, once someone wins the lot in the raffle, it will be a question of after the fact, and a doubtful matzran will not be able to remove him.

Therefore, in summary, def as a seller is not bound by ddbm, and it is not more than doubtful that pl will have these rights due to his mother alone, if they will live separately. Therefore, pl will not be able to take the lot from the raffle winner. We approve, though, of def’s decision that if pl wins any of the lots in the raffle, he should be allowed to choose the one next to his mother. 

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