Shabbat Parashat Shoftim 5783

P'ninat Mishpat: Rights of a Yishuv on Peripheral Land – part II

Case: The plaintiff (=pl) is a yishuv in Yehuda/Shomron. The defendant (=def) planted an orchard on unused land outside the yishuv without permission from anyone, which has been the subject of litigation for years. When pl wanted to build an access road for the yishuv through the orchard, a beit din ruled: def must acknowledge that he does not own the land and allow pl to build as needed; pl will reimburse def for taking land def has been cultivating. The sides signed an agreement based on this ruling. It includes provisions for compensation for def but requires him to receive permission if he wants to expand the orchard. A later agreement dealt with def’s erecting structures on the land and allowed pl to build housing on the land in return for compensation. Years later, pl decided to levy taxes and security charges on def and other businesses in the yishuv and its periphery, claiming it is unfair for businesses to benefit while only residents pay. This would cost def tens of thousands of NIS a year. Pl now demands payment retroactively for the years that def refused to pay.  Pl also demands part of the profits from the sale of part of def’s operations. Def claims that pl cannot demand taxes on def’s orchard because the land is outside pl’s jurisdiction. Also, standard practice is for yishuvim to not charge farmers who cultivate the land around them, as it adds staying power to and serves as a security buffer for the yishuv. It is also not right to change the rules years after def is on the land. 

Ruling: [Last time we saw that since pl does not own the peripheral land in question, they cannot demand rent or taxes from businesses.]

Because pl does not own the land and did not plant the orchard, it is not entitled to any profit from proceeds from the sale of the orchard.

Does def have to pay for security pl supplies? An expert hired by beit din identified valuable elements of security (fence, patrol, electrical systems) that relate to the area of the orchard. In a few places in the gemara (see Bava Batra 4b), there is a concept of neheneh – one has to pay for benefit he received from another even though there was no agreement on the matter. One example is that when Reuven builds a fence around his property in a way that also fences in Shimon’s property, Shimon has to pay for the benefit he receives from that fence (Shulchan Aruch, Choshen Mishpat 158:6). In the uncertain security situation in that region, security steps are a necessity for def. This is certainly so when the fence had to be longer than otherwise necessary because of the location of the neighbor’s property (see Bava Kama 20b). The recipient has to bring proof of a claim that it was provided as a present (Rama, CM 264:4).

If one took steps to protect his resources and those of his friend, the friend has to pay according to the benefit (ibid.). The Netivot Hamishpat (264:1) says that it depends on whether the friend’s protection was part of the plan or happened without thought. In this case, steps taken show that the security was also for the benefit of def and others in similar situations.

The gemara (Bava Batra 7b) also rules that a community can force members of the community to take part in the costs of security. How to divide the costs, per head or according to resources that need protection, depends on whether the danger is to lives or only of theft/damage. Another version within the gemara is that it depends on one’s proximity to the city wall. There is a question whether payment according to resources is because of ability to pay or due to the amount of benefit one receives (Chazon Ish, Bava Batra 4:7). In this case, both dangers exist, and def has significant property to be protected; he is also particularly close to the fence. Therefore, pl can levy reasonable security fees on def even if def does not live on pl’s property.

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