Shechenim - Chapter 13

The rationale for this ruling is that property could be bought easily in the Talmudic era. Hence, our Sages felt that just as a purchaser could buy property in one place, he could also buy it in another. Therefore, they gave a neighbor – who might never have the chance to buy the property that borders on his – the opportunity to displace the purchaser and join the property to his own fields. This rationale does not apply with regard to the recipient of a gift, for it is not likely that he will be given property as a gift again. And the giver can justifiably say that he would like to give the property to the intended recipient and not to the neighbor.
Nor would reimbursing the recipient financially for the gift be sufficient. For both the giver and the recipient desire that the property given remain in the recipient’s hands, so that there be a remembrance of the giver’s kindness and the close relationship between the two (Sefer Me’irat Einayim 175:101).

It is not common for a person to accept financial responsibility for a present. After all, the recipient has nothing to lose. There is no reason for the giver to accept such responsibility. Hence, we assume that deception is involved (Ibid.:102).

Ordinarily, the neighbor must pay the amount stated in the deed of sale, but that does not apply in this instance. See also the following halachot for the clarification of this matter.

I.e., tefillin or a Torah scroll, as stated in Hilchot To’en V’Nit’an 1:2.

See Hilchot Sh’luchin V’Shutafin 9:1, which states that our Sages ordained that an agent must take an oath that he acted justly on behalf of the principal. Since, as stated in Chapter 12, Halachah 5, the purchaser is considered the agent of the neighbor, he must take such an oath before receiving payment.

This expression refers to a conclusion reached by the Rambam through his independent reasoning and not based on an explicit Talmudic source.

For we assume that a person would not pay an exorbitant price for a property. Although we generally accept a person’s oath as true, the likelihood that a person would not pay an exorbitant price for a property is so great that in such an instance we do not give the purchaser the option of supporting his claim with an oath (Maggid Mishneh).
The Beit Yosef (Choshen Mishpat 175) notes that in Chapter 14, Halachah 4, the Rambam rules that if the purchaser paid 200 zuz for a property worth 100, the neighbor must pay the full price, provided the purchaser supports his claim with an oath. Nevertheless, he explains that there is not necessarily a contradiction between the two rulings. In the later chapter, there is no question that the purchaser did in fact pay the exorbitant price. The only question is whether he and the seller arranged that he pay such a price to compel the neighbor to pay it and then divide the profits between themselves. In the case described in this halachah, by contrast, the purchaser already showed his dishonesty (by drawing up a deed saying the sale was a gift). Therefore, we look askance at his claim to have paid an exorbitant price and do not give him the opportunity of supporting that claim with an oath.

Although the price is exorbitant, no one is compelling the neighbor to pay it. He may leave the field in the possession of the recipient. In contrast to the previous halachah, in this instance, the neighbor must pay the full price, because there is no admission of fraud.

From the fact that a courtyard is mentioned, the Maggid Mishneh derives that – in contrast to an exchange – in ordinary purchases involving homes, a neighbor is given the right to displace the purchaser. See Chapter 12, Halachot 16-17 and notes.

For the owner of each of the courtyards may claim that they do not desire anything else, only the other courtyard in return for their courtyard (Maggid Mishneh).
In his Kessef Mishneh, Rav Yosef Karo quotes the Tur, who states that the Rambam’s ruling applies only when a courtyard is offered in return. When a field or an orchard is offered in return, if the neighbor can give the seller as good a field or orchard as the purchaser, the neighbor has the right to displace him.
Rav Yosef Karo himself does not accept this conclusion, explaining that just as it is possible for a person to have individual preferences when it comes to a courtyard, so too, he may have an individual preference when it comes to a field or an orchard. Therefore, in his Shulchan Aruch (Choshen Mishpat 175:24), he quotes the Rambam’s ruling. Even the Ramah – who often follows the rulings of the Tur – accepts the Rambam’s ruling.

I.e., an attempt to prevent the neighbor from exercising his right.

Since the purchaser was given the worth of the article or animal, we assume that he will be able to find another one in the market place to replace the one he used for the exchange (Sefer Me’irat Einayim 175:41).

The commentaries question what would be the ruling when the first sale involved a large portion of property, but it still did not border on the neighbor’s field and the second sale involved a smaller property that did.

Since the field that is sold is surrounded by the person’s other fields on all sides, none of the neighbors has the right to displace the purchaser from the property.

Through the purchase of the small portion of the land, the purchaser insures that a neighbor will not be able to displace him from the larger portion of land. For as the Rambam proceeds to explain, the purchase of the small portion of land makes him a neighbor, and one neighbor does not have the right to displace another one. Nevertheless, using the principle the Ram bam mentions, the court tries to verify that the purchase of the small portion of land was not merely a ruse to enable him to maintain possession of the larger portion.

If the small portion of land purchased first is of greater or lesser value than the portion of the land purchased afterwards, it can be explained that it was purchased because of its intrinsic value. Therefore, the sale of the second portion is not annulled.
If, however, there is no difference in quality between the first property and the second property, we assume that the property was sold in this manner only to prevent the neighbor from exercising his right. Therefore, the neighbor is granted the option of purchasing the property (Sefer Me’irat Einayim 175:47).

The Ramah (Choshen Mishpat 175:28) states that when there is suspicion that the sale was conducted as a ruse, the neighbor can have the court issue a warning of a ban of ostracism against those who try to circumvent the rights of the neighbor.

The first portion of the property was sold only so that the purchaser is considered a neighbor.
The Ramah (Ibid.) states that the same law applies if a person gives a colleague a present of landed property and then sells him landed property next to it at a price higher than the ordinary. We suspect that he gave him the land as a present only so that he would also be called a neighbor, and then the neighbor would not be able to displace him. Later, when he purchased the second portion of property, the purchaser reimbursed the seller through the exorbitant price.

The Tur (Choshen Mishpat 175) adds that the neighbor is not obligated to warn the purchaser not to purchase the larger property.

From the Rambam’s words, it appears that the first sale remains binding, and the purchaser is not forced to give up that property. Even if the purchaser paid an unusually large amount for the first property and a lesser price for the second property – an indication that the two sales are one – the neighbor is not required to purchase the first property from the purchaser (Sefer Me’irat Einayim 175:48). The Sefer Me’irat Einayim, however, also quotes the opinion of the Tur who offers a different interpretation.

This applies even if the neighbor agrees to fulfill all the conditions stipulated by the seller. For the seller may claim that he trusts the purchaser more than the neighbor and would rather rely on him to fulfill his commitment.

For until then, the sale is not completed and the property does not belong to the purchaser.

In his Kessef Mishneh [and this position is reflected in his Shulchan Aruch (Choshen Mishpat 175:30)], Rav Yosef Karo explains that this ruling applies only when the neighbor protests as soon as he sees the purchaser building. Otherwise, the fact that he does not protest is interpreted as acceptance of the purchaser’s ownership.

As explained in the later clauses of the halachah. If the value of the property increases or decreases because of market fluctuation and not because of the purchaser’s actions, the purchaser should be paid the purchase price, no more and no less (Shulchan Aruch [Choshen Mishpat 275:6)].

We do not say that is as if the purchaser owned the property and then sold it to the neighbor, in which instance he would be entitled to a greater return for the improvements he made. Instead, it is considered as if he purchased the property on behalf of the neighbor and he was making those improvements without his knowledge.

Usually, all the property a person owns is considered to be on lien to one’s creditor. Even if the property is sold afterwards, the creditor may expropriate it. Hence, in this situation, one might think that the purchaser’s creditor might be entitled to expropriate the property from the neighbor.

I.e., in this instance as well, it is not considered as if he owned the property and then sold it to the neighbor. Instead, it is considered as if he purchased it on behalf of the neighbor. Hence, his own creditor never established a lien to it.
Note Sefer Me’irat Einayim 175:11, which rules that even if the neighbor has already reimbursed the purchaser, the creditor of the purchaser does not have any claim against the neighbor.

See Hilchot Sh’luchin V’Shutafin 1:2, where this principle is cited.

These are the laws that govern a situation in which a person uses property belonging to a colleague without his permission, as stated in Hilchot Gezelah Va’Avedah 10:4. Although the increase in the property’s value is more than the expenses the person undertook, he is reimbursed only for his expenses. And if the increase in the property’s value is less than the expenses, he is reimbursed only for the increase.
The Shulchan Aruch (Choshen Mishpat 175:6) differs and maintains that if the improvements were made before the neighbor claimed the property, the purchaser must be reimbursed for the full measure of the property’s increase in value.

Because with his actions, he impaired the neighbor’s position.

For until the neighbor claims the property, it is considered to belong to the purchaser (Maggid Mishneh).
Based on this ruling, the Or Sameach concludes that the analogy to an agent is not entirely appropriate.

The Maggid Mishneh states that he does not know the source for the rulings in this or the following two halachot. With regard to this halachah, Sefer Me’irat Einayim 175:22 draws a comparison to the law mentioned in Chapter 12, Halachah 6, concerning a person who sells all his property to one purchaser.

For each sale is a separate transaction.

I.e., to the purchaser. This is the version in the standard printed texts of the Mishneh Torah. According to authoritative manuscripts and early printings – and this version is borne out by the statement of the law in the Tur and the Shulchan Aruch (Choshen Mishpat 175:15) – the term meaning “to him” is omitted, implying that any sale of his property prevents him from exercising his right.

For he is no longer the owner of the bordering property. Moreover, even the purchaser who purchased this property does not have the right to displace the purchaser of the first property [Shulchan Aruch (Ibid.)].

See Chapter 14, Halachah 2 and notes.

As payment for an outstanding debt.

Who exercised his right to displace the purchaser.

The price he paid.

As mentioned previously, although the purchaser is considered merely the agent of the seller – and thus, the neighbor should not have any claim against him, the analogy of an agent is not entirely applicable, and with regard to this particular situation, the purchaser is considered as having sold the property to the neighbor (Maggid Mishneh).
In his Kessef Mishneh, Rav Yosef Karo takes issue with the Rambam and explains that this ruling applies only in a situation where the seller has funds or property to give the purchaser. If he does not, it is appropriate to require the seller to absorb the loss when he had no potential to benefit at all from this transaction.
In his Shulchan Aruch (Choshen Mishpat 175:21), Rav Yosef Karo quotes the Rambam’s view without making this qualification, but also mentions the view of Rabbenu Asher and the Tur, who differ and maintain that the neighbor must seek reimbursement from the seller alone. The Ramah states that this view should be followed.

This law applies whether the property was expropriated by the court in payment of the debt or given voluntarily by the debtor to the creditor as payment [Shulchan Aruch (Choshen Mishpat 175:20)].

For ultimately the creditor is not entitled to anything more than the repayment of the debt owed him.

This law applies only if the property was expropriated by the court. If it was given to the creditor voluntarily, the owner may not redeem it (Sefer Me’irat Einayim 275:33, based on Hilchot Malveh V’Loveh 22:17).

See Hilchot Malveh V’Loveh 22:16, which explains that the owner of a property that was expropriated can redeem that property by paying his debt.

The Meiri explains that this refers to a minor who is orphaned.

See Chapter 12, Halachah 5.

For the court is enjoined to take whatever steps are necessary to protect the rights of a minor (Gittin 52b).

This applies both to property that is classified as nichsei m’log and to property that is classified as nichsei tzon barzel.

Our Sages (Ketubot 95b) deemed him a purchaser of his wife’s property. Therefore, the privilege is his and not hers, and she cannot waive the privilege on his behalf (Sefer Me’irat Einayim 175:23).

Note the parallel in Hilchot Mechirah 30:2-3.