Translation:Shulchan Aruch/Choshen Mishpat/175

Paragraph 1- If not all of the brothers were present and the one that was present wants to divide, he may divide in front of three people, even if they are laymen, so long as they are trustworthy and experts in appraisal. If he divided in front of less than three people, he has not done anything. If the property was money and all of the same currency, three people would not be required. He would just need two to serve as a mere proof. Similarly, if property was deposited in the possession of a third party and some of the brothers come, he can give them their portion in the same manner.

Paragraph 2- If after such brother divided in front of three, one of the other brothers came and said that the portion he took is worth more in his eyes and he will pay more than it was appraised for, we would listen to him to void the division. If he comes to void the division without any claim and just to demand a new lottery, however, we would not listen to him.

Paragraph 3- If two brothers divided and a third brother they were unaware of comes, the division is void. Each if there were three fields and each one took one and they divided the third and now when the third brother comes his portion would be this third field they divided, we do not say each brother can keep his field. Rather, any of the brothers has the rights to void the entire division and make a lottery for all of them. Even if the third brother agreed to take a little from each property without a lottery, either of the two brothers has the right to void the division because it was done in error.

Paragraph 4- Similarly, if the brothers’ father’s creditor comes to collect from one of the portions, such as where the land was specifically designated for collection, the division is void and they would re-divide.

Paragraph 5- If one of the brothers or partners sold his portion to another, the other brothers or partners can remove the buyer. There are those who say that even if the buyer is a neighbor, the partner or brother has the right to remove the buyer. This is the primary view.

Paragraph 6- If one sold his real property to another, regardless of whether he sold it, his messenger sold it or the court sold it, his immediate neighbor has the right to give money to the purchaser and remove him from the field. Even if the purchaser was a scholar, neighbor and relative of the seller and the immediate neighbor is an ignoramus and not related to the seller, the immediate neighbor takes precedence and can remove the buyer. Even if the seller says that he would prefer not to sell at all than to sell to the immediate neighbor, the neighbor will acquire the property against the will of the seller. The purchaser is considered a messenger of the immediate neighbor for all matters. The witnesses on the purchaser’s kinyan will write a document in the neighbor’s name and no further kinyan is required. Similarly, if the property went up in value, the neighbor only needs to pay the amount it was purchased for. If the property went down in value, he must pay the amount it was purchased for if he wants the property. If the buyer repaired the property and caused it to go up in value, he has the status of one who goes down to a property with permission, and we would appraise for him and he has the upper hand. If he caused it to go up in value after the neighbor made a claim, he has the status of one who goes down without permission. If the purchaser removed plantings or ruined the land, we would subtract what was ruined from the price, even if he ruined it before the neighbor came. If the purchaser consumed fruits after the neighbor came and brought money to remove the purchaser, he must pay it back. That which he consumed before the neighbor came would not need to be paid back. If the purchaser borrowed money before the neighbor came, the creditor would not have a lien on the property and would not be able collect from the neighbor.

Paragraph 7- If the purchaser acquired the property for a maneh but it is worth 200 zuz and the seller would have given that price to anyone, such as where he is desperate to sell, the neighbor is only required to give a maneh. If the seller would not have given this price to someone else, he must pay 200. If the purchaser claims the seller would not have given this price to anyone else and the neighbor claims he would have, the neighbor has the burden of proof.

Paragraph 8- If the seller sold the property on credit, there is no right of first refusal unless the neighbor wants to pay right away or the seller doesn’t mind and is willing to wait for the neighbor.

Paragraph 9- If the purchaser acquired the property for 200 but it is only worth 100, the neighbor must pay 200 if he wants the property. If the neighbor claims there is trickery involved between the two of them, the purchaser would swear while grasping a holy item and would be able to collect 200. If there were witnesses that attest he paid 200 and the neighbor claims that the price was set on trust and he knows with certainty that the seller only took 100, he must pay the amount the witnesses testify, remove the purchaser and have him swear that he purchased it for 200 and the purchaser would be exempt. If one was collecting the land for payment of debt, the neighbor must only pay the amount the court appraised it for, even if the debt was more than that.

Paragraph 10- If one sells conditionally, whether the condition was on the seller or buyer, the neighbor cannot remove the buyer until the conditions are fulfilled, the buyer acquires the property and there is no outstanding issue remaining, after which the neighbor would be able to remove him.

Paragraph 11- If the sold property has four neighbors on its four sides, all the neighbors have the same rights and they would divide the property diagonally so that each one receives a portion adjacent to his entire field. If there were five neighbors, such as where there were three on three sides and two on the fourth side, those two have the status of one and between the two of them they would take one portion the size of each of the other three’s portion. When is this true? Where they all come together. If one comes first and removes the buyer, he alone would acquire the property. Even if there were many neighbors and one neighbor with a small portion went ahead and removed the buyer or purchased the property from the seller he would acquire it. In the first instance, however, the seller should sell to all of them together. There are those who disagree. If one neighbor comes first to buy and the others claim that they too want to buy but that this solo buyer threatened to cause them damage and the buyer has the capability of doing so and they have witnesses attesting to it, once the threat has been removed they can remove him from their portion. See later in this Siman in seif 33. If some of the neighbors come and some are in another jurisdiction, those neighbors that are present can remove the buyer and the property will belong only to them.

Paragraph 12- If there were many partners on one side of the sold field, each one has the right to remove the purchaser. If one went ahead to remove him first, he would acquire the property and the other partners would have no right to object. Moreover, even if one side of the sold field is a field of two partners and on the other side is a field owned by one and one of the partners purchased the property, the solo owner of the field on the other side cannot tell the purchaser that he is a certain neighbor while the partner is only an uncertain neighbor because perhaps your portion will end up being on the other side. Rather, he is considered a certain neighbor just like the solo owner since he has a portion in the other field and because he was first to purchase he has acquired the field. The same would apply where a non-neighbor purchased the field and one of the neighbors can remove him, even if he is only a partner. The purchaser cannot tell the neighbor that perhaps your portion will end up being on the other side. Similarly, if the sold field belongs to two individuals and one of them sold his portion to someone else, the neighbor can remove him and the buyer cannot say that because the portion I purchased is not defined perhaps the seller’s portion will end up being on the other side of the neighbor’s.

Paragraph 13- If one purchased a field from two sellers, and the neighbor comes to remove him from half, he cannot remove him unless he removes him entirely or he must let him keep the whole field. This is only true if it is one field. If he purchased two fields, however, he can remove him from one and leave him with the other. If one sells real property to two buyers, however, the neighbor can remove both or just remove one and leave the other.

Paragraph 14- A husband has the status of a neighbor via his wife’s property in that if she has usufruct property and they are coming to sell the land next to it, the husband may remove the buyer. Even if they made a kinyan from the wife of a waiver to the purchase it would be of no effect and the husband can still remove the purchaser. Similarly, if a slave transacts with his master’s properties and he removed the purchaser and the husband or master wanted the removal, it would take effect via the wife or slave. If he does not want it, it would not take effect, and the land would revert back to the purchaser and he would return the money.

Paragraph 15- If a neighbor comes to remove the borrower but before he can do so he sold his bordering fields, he has lost his rights. The purchaser of the neighbor’s land would also not have the status of a neighbor to remove the bordering purchaser.

Paragraph 16- If someone appointed a homeowner as a messenger, even if the messenger himself is a neighbor he is not permitted to purchase the property and when he sells it to another he cannot remove the purchaser. Similarly, if one signs on a sale-document as a witness he cannot remove the purchaser.

Paragraph 17- If the purchaser died before the neighbor removed him, he cannot remove the inheritor. There are those who disagree and this appears to me to be the primary view.

Paragraph 18- If the purchaser gave the property to another as a gift without a guarantee, the neighbor cannot remove the recipient so long as there was no fraud in the matter. There are those who disagree and this appears to me to be the primary view.

Paragraph 19- If the first purchaser sold the property to a second purchaser, or if the inheritor or gift recipient sold the property, the neighbor may remove the purchaser.

Paragraph 20- If a creditor seizes the property to collect his debt, the neighbor may pay him off, whether the court appraised the property to allow him to collect or if he collected with the borrower’s knowledge. If the party being seized wants to give the money that was owed, the creditor would return the field to him permanently.

Paragraph 21- If the seller’s creditor seized the property from the neighbor, there are those who say that the neighbor will collect from the purchaser who will then collect from the seller. Others argue with that view and say the neighbor has no claim at all on the purchaser, but solely with the seller and this appears to be the primary view.

Paragraph 22- There are those who say that a neighbor is unable to appoint a person in his place to remove the purchaser via the laws of a neighbor except where he transferred possession of the original field that he is making a claim through. This is only with respect to removing the field from the buyer which he cannot do. With respect to taking the place of the neighbor to provide the money to buyer when the time comes, however, even if he were to send the money with a messenger appointed in the presence of witnesses, the messenger may take the place of the neighbor.

Paragraph 23- If both the neighbor and purchaser each bring money and the purchaser has superior money than the neighbor or the money is more liquid or if the neighbor’s money was piled and sealed whereas the purchaser’s was untied, the neighbor will lose his rights. The same would apply if the purchaser went ahead and paid the seller and the neighbor will not be able to remove him other than with similar money. The same applies to any item which can cause the seller to suffer a loss, in which case they did not give any rights to the neighbor.

Paragraph 24- If the seller swapped a courtyard for a courtyard, field or vineyard, or vice versa, because it is a swap of real property for real property there is no law of the right of first refusal. This seems to be the appropriate way to rule, notwithstanding the fact that there are those who disagree. If the seller swapped a courtyard for an animal or movable item, however, we see what the value of that animal or movable item is and the neighbor can pay that amount and remove the purchaser. The purchaser cannot demand he receive the item he purchased with because this transaction was trickery and the fact that he used an item does not help him at all. The same applies to any similar case where the judge perceives trickery and the neighbor will not lose his rights.

Paragraph 25- If the neighbor says he will he put in effort and bring the money, we would not wait for him and he will lose his rights. If he says he will go and bring the money and he is wealthy enough to have such money, we would wait for him to bring the money. If he is not wealthy we would not listen to him. There are those who say that if prior to the neighbor coming to court or approaching the seller he was unaware of the sale or he knew of the sale but did not know the price, when he says he will go and bring money we would wait for him even if he is not wealthy. We would only wait the time required to go and bring money from his house, but not any more than that.

Paragraph 26- If the purchaser wanted to buy the property to build houses and the neighbor wanted to plant the property, the purchaser would receive the land because we want to settle the land and there would be no right of first refusal. There are those who says that if the neighbor wants to plant trees he may remove the purchaser.

Paragraph 27- If a row of palm trees or a tall and strong building or wall or something similar separates the property and that of the neighbor, we see if the neighbor is able to even bring one row into the item that separates the field so that the two fields can become mixed, in which case he is considered a neighbor and can remove the purchaser. If he cannot bring in one row he cannot remove the purchaser.

Paragraph 28- If the seller sold the purchaser a small amount of real property in the middle of his field and then sold him land next to that middle portion, we see if the small amount he originally sold was inferior or superior property as compared to this second piece of land he sold, in which case the purchaser can retain the land and the neighbor cannot remove him because he is also a neighbor due to the small amount he purchased in the middle. If the small amount in the middle was similar to the land in the second sale, this is trickery and the neighbor can remove him from the field he purchased in the latter sale. Similarly, if the seller gave the recipient a small amount of land as a gift, we see if when he sold the bigger portion it was expensive enough to include the portion that was gifted, in which case it is trickery and the neighbor can remove him. If there is any suspicion of trickery we can place a cherem on it. The same applies to any form of trickery used to push away the neighbor, and we would place a cherem on it.

Paragraph 29- If the purchaser comes and consults with the neighbor and says so and so, your neighbor, wants to sell me this field, I will go and purchase it, and the neighbor says go and purchase it, he would not have lost his rights and he can remove the purchaser after the sale, unless a kinyan was made. There are those who say that if the neighbor said in the presence of witnesses “you shall be witnesses on me that I am removing myself from this field,” he would not need anything else because he means to say he is removing himself like he would have had he made a kinyan. If the purchaser tells the neighbor to buy the property and the neighbor says he doesn’t want to, there are those who say the purchaser would obtain rights immediately because one cannot become a messenger against the sender’s will.

Paragraph 30- When is it true that a kinyan is required? Where the neighbor waived his rights before he acquired the property. If the neighbor waived his rights after the purchaser acquired the property, such as where the neighbor came and assisted him, rented from him or saw him building and destroy something and using the property and the neighbor did not object, however, even if it is within the timeframe that he could remove the purchaser, he has waived his rights and cannot remove the purchaser.

Paragraph 31- If the seller consulted with the neighbor about selling to him for the same money and the neighbor told him to go sell in the market because I don’t want it, no kinyan would be required.

Paragraph 32- If the neighbor delayed the amount of time it takes to go, bring money and make a claim, and he did not make a claim, he has lost his rights. If an unavoidable accident occurred he would not lose his rights. Similarly, if he was silent because of an error, such as where he thought he would receive the money of the sale and then when he discovered the money went to his neighbor he now wants to remove the purchaser, he is in the right. This is only where the sale was revealed to the people of the city and the purchaser took possession of the property. If he took possession in private, however, the neighbor would not lose his rights until the sale was publicized and he subsequently delayed from making a claim in court.

Paragraph 33- If there are witnesses that the purchaser threatened the neighbor with something he has the power to do in order that he not object to the purchase, once the duress is removed the neighbor can remove him.

Paragraph 34- If the neighbor was in another country or he was sick or a minor and later became healthy or became an adult or came back, he does not have the power to remove the purchaser because otherwise a person would never be able to sell his land because the purchaser will say I will lose the land years from now. There are those who say that nevertheless the seller should, in the first instance, go to court to have them inform the friends and relatives of the neighbor of the sale in the event they want to purchase.

Paragraph 35- If there were many neighbors and one of them sold his rights to the purchaser, the others have the right to remove him, even if the rights were sold with a kinyan.

Paragraph 36- If one sold all of his properties to another, the neighbor of one of the fields does not have the power to remove the purchaser from that field because he acquired that field with the others as one sale. Even if the neighbor wants to purchase all the fields wherever they are, he does not have the power to remove the purchaser.

Paragraph 37- If one sold the property to the person he had originally purchased it from, the neighbor does not have the power to remove him because he has already purchased it. The same applies where he sold it to the son of the person he originally purchased it from and the neighbor would not have the power to remove him. There are those who disagree in the case of a sale to the son. Nevertheless, in the first instance, if the neighbor and original owners come to purchase, the neighbor would take precedence. If another person comes to purchase, the original sellers do not have the power to object. If Reuven sold to Shimon, and Shimon to Levi, and Levi went and sold back to Reuven, the neighbor has the power to remove him.

Paragraph 38- If one purchased from a gentile, the neighbor has no right to remove him.

Paragraph 39- If one sold to a gentile, there is no right of first refusal. If one purchased property next to a gentile, there are those who say that the neighbor on the other side does not have the power to remove him. There are others who say that one should not rely on this ruling unless there is another reason why he should not be able to remove him.

Paragraph 40- If one sells or rents to a gentile, we ostracize him until he agrees to indemnify for all damages that come from the gentile until the gentile follows Jewish law in all his dealings with the neighbor. If the gentile compelled the neighbor on something that was not the law under Jewish law, the seller must pay. This is only where they first ostracized him. If they did not ostracize him and damage occurred from the gentile, however, there are those who say he would be exempt from paying and this seems to me to be the primary ruling. If damage occurred from the gentile living there while the seller was still alive and he subsequently died, the son would be obligated to pay from that which he inherited from his father. If the damage did not occur until after the seller died, however, there are those who say they did not penalize the son in such a case.

Paragraph 41- When is this true? Where the seller was able to sell or rent to a Jew for the same amount that the gentile gave. He is not, however, required to sell to a Jew at a lower price. If we see that the gentile intends to buy in a Jewish neighborhood in order to destroy the Jew’s heritage, the law would be dependent on the judges’ perception.

Paragraph 42- If one sells an inferior field in order to use the money to buy a nicer field, or if he sold in a far place in order to purchase in a closer place, there is no right of first refusal because maybe in the interim when the neighbor finds out someone else will purchase the field the seller wanted to purchase.

Paragraph 43- If one sold property in order to pay the gift to the King, for burial purposes or to provide food to his wife and daughters, and some say the same would be true if he sold for his own food, there is no right of first refusal. Even if he borrowed for burial purposes, to provide food to his wife and daughters or to pay taxes, when he sells to pay back these debts, there is no right of first refusal. Even in the first instance when they are coming to purchase, whomever purchases first would obtain the rights. There are those who say the neighbor would take precedence.

Paragraph 44- If the purchaser claims the seller sold to him for tax purposes or something similar, and the neighbor says he is lying just to void his rights, the neighbor has the burden of proof. If he cannot bring proof the purchaser would swear a heses oath.

Paragraph 45- A purchaser will not even be removed on an uncertain matter until the neighbor brings clear proof. Thus, if the purchaser claims the neighbor is a thief or sharecropper on his field or that he rented it or received it as collateral, the neighbor must bring proof that he is in fact the owner of the neighboring property and that this property in his possession. The same applies to anything similar. Similarly, in a case where halachic authorities disagree we would not remove the property from the purchaser because he already has possession. In the first instance, however, the seller should sell to the neighbor.

Paragraph 46- If the neighbor removed the purchaser and it was then discovered that the neighbor did not own his field, the purchaser has the upper hand. If he wants he can keep his money or he can return the money to the neighbor and get back his purchase. The neighbor would be required to pay for all the fruits he consumed. If the theft victim who now owns the land wants to remove the purchaser with the law of the right of first refusal, we evaluate whether he knew of the sale and was able to remove the purchaser when the thief had removed him, in which case he is no longer able to remove the purchaser. If he was unaware of the sale at the time of removal, even though he found out later, he would not lose his rights as neighbor because of this.

Paragraph 47- If one sells to a woman or minor orphans- a sale to adult orphans and minors that are not orphans would have rights of first refusal- there is no right of first refusal. If he sold to one with an undefined sex or to a hermaphrodite, the neighbor cannot remove the purchaser because they may be women. This is only with respect to a woman that has known properties or a widow where there is no concern that she is being deceitful and really purchasing for her husband and claiming it is for herself. If she and her husband bought together, the neighbor cannot even remove the husband. If one purchases from a woman, there are those who say there is no right of first refusal. Only a neighbor cannot remove a woman. A partner, however, can remove her because a partner has more rights than a neighbor.

Paragraph 48- If the neighbor is a minor the court will see whether it is to his benefit to remove the purchaser or take his portion with the other neighbors.

Paragraph 49- If one sells to his business partner, even if he is not his partner in real property, he would acquire the property and the other partners or neighbors would have no right to take it from him. If the purchaser has no land and is in a tough financial predicament and the neighbor only needs the land for profit purposes, there are those who say he would not have the right of first refusal. There are those who disagree. The words of Maharam and Mahariv seem to indicate like the first view. This is only where the purchaser is from the city and cannot find a home in another place. Otherwise, everyone would agree that the neighbor takes precedence.

Paragraph 50- If someone wants to sell real property and two parties come, each one offering to pay the same amount and neither are neighbors but one is a city resident and the other has a non-adjacent neighboring field, the city resident would take precedence. A scholar takes precedence over a non-adjacent neighbor. A scholar takes precedence over a relative. A non-adjacent neighbor takes precedence over a relative. If one of them went ahead and acquired the property, he can keep it and the other that should have taken precedence does not have the power to remove him since neither were the adjacent neighbor. There are those who say that a neighbor is a friend who frequents the seller. Just living near him, however, is meaningless. There are those who disagree.

Paragraph 51- If the land belonged to one person and the building or trees belonged to someone else and the owner of the building or trees had rights to the land, each of them would be considered a neighbor to the other. Thus, if one of them sold his portion, the other can remove the purchaser, even if the purchaser was a neighbor. If the owner of the trees or building did not have rights to the land, however, and the owner of the land had the right to tell him at any time to remove the trees or destroy the building, and the owner of the land sold the property, the purchaser would acquire the property and the owner of the trees or building cannot remove him. If the owner of the building or trees sold his property, the owner of the land can remove the purchaser. If a house and upper story belonged to two people, and the owner of the house sold to a neighbor, the owner of the upper story cannot remove him, because they are not considered partners to each other, but neighbors to each other.

Paragraph 52- Similarly, if the land next to such property where the land belongs to one and the building to another was sold, the owner of the land would have precedence over the owner of the building unless the owner of the building has rights to the land as was discussed.

Paragraph 53- All real properties in the world have the right of first refusal. With respect to movable items and slaves, however, there is no right of first refusal. Something that is attached to the ground has the status of real property and there would be a right of first refusal, and that is why there is a right of first refusal on houses. The same is true for seats in a synagogue. There are those who say if one sells his seats in the synagogue, his family can remove the purchaser because of the embarrassment to the family. There are those who disagree. It seems to me that it all depends on the context. If there was embarrassment to this family, such as where each family has their own section, we would rule like the first opinion, just as we say when it comes to one selling his burial plot or something similar. If individuals lend together in a storefront, the store does not have the status of real property and a neighbor and partner cannot remove the purchaser as they can with real property. The rules would be the same as it is with movable property. Nevertheless, if it appears to the court that damage would occur to the second partner, he would be able to remove the purchaser. The same applies with all movable items. Even though they don’t have the right of first refusal, if one sold his portion the second partner can remove the purchaser if it appears to the court that this second party is not easy to deal with as the first.

Paragraph 54- If one gives a gift there is no right of first refusal. If the donor provided a guarantee in the gift document, there would be a right of first refusal. How much would we give? The amount the property is worth. If the purchaser claims he purchased it at such and such price and the gift was trickery, he would swear while grasping a holy item and collect as if he were a messenger. This assumes he claims an amount that is appropriate or a drop more. If he says about property worth 100 that he purchased it for 200, however, he would not be believed. If the gift document states, “I accept responsibility on this gift and if it is taken from the recipient’s hands I will give 200,” the neighbor must give 200 to remove the recipient, even if it was only worth 100.

Paragraph 55- Property sanctified for the poor does not have the right of first refusal.

Paragraph 56- If the field next to the neighbor was ownerless and another came and took possession of it, if he can find a similar ownerless field, the neighbor has the right to remove him. If he cannot, the neighbor does not have power to remove him.

Paragraph 57- If one gave his field as collateral and subsequently sold it to the party who has it as collateral, the neighbor cannot remove him. If the borrower sold the field to a third party, however, the lender cannot remove the field, even if the purchaser is not a neighbor. There are those who say that even if the neighbor went ahead and purchased the field the lender would have the right to remove it and this seems to me to be the appropriate way to rule, so long as it appears to the court that there was no trickery involved by lending to the seller just so he can remove the purchaser. If one lends a gentile against his field or house, and another party comes and purchased the gentile’s property, the lender may remove him. If one lent against a house but did not lend on the wine cellar underneath, the lender has nothing to do with the wine cellar and if he acquired the wine cellar the neighbor may remove him.

Paragraph 58- If when the collateral was first given the neighbor comes to complain and object and offers to lend him because perhaps the borrower’s intention was to sell to the lender, the neighbor has no power to stop it because the owner of the field can say the lender is pleasant to deal with while the neighbor is tougher than him. Nevertheless, if it appears to the judge that there is trickery involved, we would push away the lender. If the field next to the collateral is being sold, the borrower has right to object to the lender purchasing it and the lender does not have the power to object to the borrower purchasing it. If the borrower does not want to purchase it and a third party purchases, the lender cannot remove it from him, even if the purchaser is not a neighbor. If the lender went ahead and purchased it, the neighbor may remove it from him. There are those who say that a lender does have the status of a neighbor and this seems to be the primary view.

Paragraph 59- . If one rents a house from another and the neighbor wants to remove him from the property so he can rent it, we would not listen to him.

Paragraph 60- If someone is renting a house and the adjacent house is sold he does not have the right to acquire it via right of first refusal. If he went ahead and acquired it the neighbor is able to remove him. There are those who disagree and hold that a renter does have the right of first refusal.

Paragraph 61- If two individuals rented a field as partners and one wants to rent out his portion to a third party and the partner wants to obtain the rights via right of first refusal, the partner is in the right because he is a partner on the field.

Paragraph 62- If one rented out his house to another and then sold it to him, the neighbor does not have the power to remove it from him. If one had a house and store one on top of the other, and rented it out to two and now wants to sell it, each renter is a neighbor for his own portion and that which he lives in.

Paragraph 63- If one rented out his house to one person and then sold it another, the renter cannot remove the house from the purchaser, even if he is not a neighbor. If Reuven had real property in which he pays Shimon an annual tax, and Shimon sold that tax to Levi, and Reuven claims he is a neighbor, and Shimon had sold the tax permanently, Reuven is in the right. If Shimon only sold it for a set amount of years, it is considered as if he sold a mere debt which has no right of first refusal.