Shechenim - Chapter 12

I.e., the soil was of the same quality, and they are both equidistant from rivers for irrigation and roads for travel.

See Chapter 7, Halachah 8, which also warns against emulating the traits of Sodom and states: “Similarly, whenever there is a situation where one person will benefit and his colleague will not lose nor be lacking anything, we compel [that person to cooperate].”
The Tur (Choshen Mishpat 174) differs and maintains that this privilege need not be granted without charge. Instead, the partner who desires the half near his property must state: “I am prepared to pay such and such for this portion. Either buy it from me at that price or allow me to buy it.”

I.e., ultimately, both portions were of the same value, because the portion of inferior land (- or the portion that was closer to the river -) was larger.

Our translation is based on the authoritative manuscript of the Mishneh Torah, the version possessed by the Maggid Mishneh and others. The standard printed text of the Mishneh Torah contains several redundant words.

Not granting him this request would also be a reflection of the traits of Sodom, for the brother receiving the more valuable portion is not losing anything – indeed, he is gaining, by granting his brother his request The Rambam’s ruling is quoted by the Shulchan Aruch (Choshen Mishpat 174:1).

I.e., the double portion he receives because he is the firstborn. See Hilchot Nachalot 2:1.

This is derived from the exegesis of Deuteronomy 21:18. The Maggid Mishneh and Sefer Me’irat Einayim 174:11 state that this law applies even if the entire property is not of equal value and one share is not the same size as the others. For were this not so and the ruling were to apply only with regard to shares of equal value, there would be no need for a verse; the law would be obvious from Halachah 1. Moreover, according to the Rambam, there would be no reason not to give a yavam both of his shares together. Indeed, not to do so, would be emulating the traits of Sodom.
The Tur and the Ramah (Choshen Mishpat 174:2) differ (based on the different interpretation of the Tur to Halachah 1) and explain that the verse is necessary to teach that when the shares are of equal value, he should be given one share next to the other. If they are not of equal value, this law does not apply.

In addition to his own share of the estate, a yavam is granted the share of the property that would have been given to his deceased brother whose widow he married (Hilchot Nachalot 3:7) Nevertheless, in contrast to the portion of the firstborn, these two shares are not considered to be a single portion, but as two separate entities.

Which is useful for irrigation.

Which is necessary for access.
The Division of a Property Surrounded By a River and a Lane
a) The lane
b) The river
c) The portion given to one heir
d) The portion given to the second heir

For the reasons explained in Halachah l. The authorities who differ with the Rambam with regard to that halachah will also differ in this instance.

It would appear that the Rambam is speaking about a situation in which the brothers or the partners have not divided their holdings yet. Nevertheless, even after the holdings are divided, a brother or a partner whose property borders on the sold property has a right to purchase it, as stated in the following halachah.

The Shulchan Aruch and the Ramah (Choshen Mishpat 175:5) state that this law applies even when the person who buys the share of the estate or partnership is a neighbor.

The Kessef Mishneh quotes the Maharik (Responsum 20) who draws an inference from the Rambam’s choice of wording indicating that this law applies even with regard to a partnership involving movable property. The Kessef Mishneh himself, however, does not accept this conception and explains that no inference can be drawn with regard to movable property, because all these laws concern landed property alone.
Note the Shulchan Aruch (Choshen Mishpat 175:5) as interpreted by the Siftei Cohen 175:5, which quotes opinions that consider a partner’s right greater than that of a neighbor. Even if a neighbor purchases a property, a partner may displace him.

Neither more or less. See Chapter 14, Halachah 4.

For the brothers or the partners may not prefer dealing with a new person with whom they did not share a business relationship previously.

The Hagahot Maimoniot and the Ramah (Choshen Mishpat 175:6) emphasize that this law applies even when the seller explicitly told the neighbor that he would not sell the property. Although it appears that he does not desire to sell the property to the neighbor, the neighbor is granted the property against his will.

The Maggid Mishneh in his gloss on Chapter 13, Halachah 7, explains that this concept can be derived from the use of the expression (Bava Metzia 108a): “I sent you to improve my position, not to detract from it,” a concept that is often applied with regard to the activity of agents – e.g., Kiddushin 42b).
The Or Sameach states that the description of the purchaser as the neighbor’s agent is not an entirely consistent delineation. The intent is that since, after the fact, the neighbor becomes bound by the terms of the sale that the purchaser negotiated, the purchaser is considered to have acted as the neighbor’s agent.

The literal meaning of the term the Rambam uses is “the person who shares a property boundary.” This is, in fact, the precise intent of the term, for, as stated in the continuation of the halachah, these privileges are not granted to a neighbor whose property does not border on the property sold.

I.e., when for various reasons, with the exception of those mentioned in Halachah 9, the court found it necessary to sell property belonging to a person, either against his will or without his knowledge.

I.e., he owned property near the property he purchased, but not bordering upon it.

As part of the mitzvah of honoring the Torah, Torah scholars are given certain privileges with regard to their business concerns (see Hilchot Talmud Torah 6:10). Similarly, a scholar, a neighbor and a relative are given certain privileges with regard to the purchase of landed property. (See Chapter 14, Halachah 5.) Nevertheless, the privileges of a person whose property borders on the property being sold are greater.

I.e., the definition of the Torah’s command was left to the Sages.

I.e., From the seller’s standpoint, there is no substantive difference who purchases his land; his interest is merely the income he derives from the sale.

For the neighbor will benefit from purchasing land next to his field, while the other potential purchaser can just as easily find another plot of land to purchase.
Note the comments of the Ramah 175:49, who quotes a difference of opinion among the Rabbis as to the ruling when a purchaser is pressed and sorely needs the property he seeks to acquire, while the neighbor requires the land merely for his profit. There are opinions that maintain that in such a situation, the neighbor is not granted the privilege of acquiring the property.

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 175:11 state that if all four neighbors desire the property it should be divided on diagonals. See diagram.
The Division of a Property Among Four Neighbors

With this phrase, the Rambam is implying that we do not consider the number of neighbors with adjoining properties on each side and divide it accordingly. Instead, it is divided according to the number of neighbors who wish to participate in the purchase.

I.e., the price is divided among them.

See Shulchan Aruch (Choshen Mishpat 175:11-12).

For, as the Rambam states in Chapter 14, Halachah 3, a neighbor who is away on a journey does not have the right to exercise his privilege upon his return.

I.e., the other partners cannot force the partner to divide the purchase with the partnership as a whole, as in Halachah 4, for as long as a partner is involved, the other partners cannot complain that a foreign individual with whom they have no experience has been introduced into the partner hip. And with regard to a neighbor, partners share a close relationship. Therefore, a partner has a greater claim to the land than a neighbor.
As mentioned above, the Shulchan Aruch (Choshen Mishpat 175:5) maintains that a neighbor can displace a partner. Sefer Me’irat Einayim 175:88, however, states that just as a neighbor cannot displace a partner from a purchase, a partner cannot displace a neighbor. If a neighbor purchases a landed property, the seller’s partner cannot force the neighbor to sell it to him unless he has a share in that property itself.

And these properties are located in different places.

Even if the neighbor desires to purchase all the properties involved, he is not given that privilege (Maggid Mishneh). The Tur (Choshen Mishpat 175) explains that it is rare that a person gets a chance to sell all of his property at once. Hence, if the sale would be dependent on the good will of the neighbors, it is possible that in the interim, the purchaser will retract his commitment.

For it is a greater act of kindness to give a person who originally owned a property the right to reacquire it than to give that privilege to a neighbor (Maggid Mishneh). Nevertheless, the original owner is not given the right granted to a neighbor with regard to displacing a purchaser from the property Ramah (Choshen Mishpat 174:37).
The Maggid Mishneh states that the son of the original owner is not given the same privileges as the original owner himself. The Shulchan Aruch (Choshen Mishpat 175:37), however, also cites opinions that grant the son this right.

Bava Metzia 108b explains that the purchaser can tell the neighbor: “I did you a favor by removing the gentile from the property. It is possible that you would not have been able to accomplish that. Therefore, you owe me a favor.”

The Shulchan Aruch (Choshen Mishpat 175:39) states that when a person sells a property to a gentile, the gentile cannot be compelled to sell it to a neighbor as a Jew is.

Even if the neighbor would be held liable for the loss according to secular law (Sefer Me’irat Einayim 175:70).

The Maggid Mishneh quotes Rishonim who state that this clause applies only if the seller in fact accepts responsibility for the loss caused by the gentile. If he does not accept responsibility, although he is acting unfairly, he cannot be compelled to pay. He is only considered a secondary cause of the damage (grama din’zikin). The Ramah (Choshen Mishpat 175:40) accepts this ruling.

In his Kessef Mishneh, Rav Yosef Karo offers three interpretations of this statement:
i) An interpretation based on the gloss of the Maggid Mishneh, that if a person rents a property to a colleague and afterwards sells the property to the tenant, the neighbors do not have the right to protest the sale and displace the purchaser [note, however, his gloss on Halachah 12);
ii) An interpretation offered by the Tur, that if a person rents a property to a colleague, a neighbor cannot come and protest, seeking to rent it instead of that person; and
iii) A corollary to that interpretation, that when the property a renter is renting borders on a property that is sold, the renter does not have the right to displace the purchaser (see Halachah 12].
He quotes all three of these interpretations in his Shulchan Aruch (Choshen Mishpat 175:62, 59, 60). With regard to the latter two interpretations, the Ramah quotes the opinion of Rabbenu Asher, who equates a rental with a sale, based on our Sages’ statement that a rental is a sale for one day.

It must be emphasized that in Talmudic times, when a property was designated as security, the creditor was given the right to make use of it. See Hilchot Malveh V’Loveh, Chapter 6 and 7.

Sefer Me’irat Einayim 175:108 explains this ruling, stating that a neighbor borders merely on a portion of the property, while this person uses the property in its entirety.
Although the Maggid Mishneh accepts this ruling, he quotes a difference of opinion among the Rabbis with regard to a person’s right to designate his property as security. There are authorities who maintain that if a person needs to mortgage his property for a loan, the neighbor has the right to give him the loan, so that he will receive the mortgage on the property. Thus, should the person be forced to give up the property in payment of the loan, the neighbor will receive it.
There are, however, other authorities who differ, explaining that the owner of the property can refuse the neighbor’s offer, telling him that he would rather deal with the other lender because he is an easier person to negotiate with [Shulchan Aruch (Choshen Mishpat 175:58)].
Although a creditor is given this right, he is not considered a neighbor, and does not have the right to displace any purchasers (Maggid Mishneh in the name of the Rashba; Shulchan Aruch, Choshen Mishpat 175:57). The Tur and the Ramah differ and maintain that even if the owner sold the property to a neighbor, the person who received it as security has the right to displace him.

The rationale for all the examples that follow is that the neighbors are not given the right to displace the purchaser if doing so will harm the seller. For this entire privilege is based on the concept of doing what is good and just, and one cannot do good and justice to a neighbor at the expense of the seller (Rashi, Bava Metzia 108b).
We have translated the term ligoal as “to purchase,” although its literal meaning is “to redeem,” i.e., to repurchase property that one has sold to someone else. This term is also used by Bava Metzia 108b. Nevertheless, Rashi in his commentary to that passage and the Shulchan Aruch (Choshen Mishpat 175:42) interpret it as referring to purchasing a new property. It would appear that the Rambam would accept this interpretation. Hence, our translation.

The Ramah (Choshen Mishpat 175:43) states that the same principle applies if a person sells a property to provide for his own living expenses.

For part of the stipulations of the ketubah is that a man’s widow and daughters will be supported by his estate after his death (Hilchot Ishut 12:2).

To cite a parallel, although when the court expropriates property and sells it, a lengthy process of announcing the sale is generally required so that the property is sold at the best price possible. However, when property is sold to support a person’s family, this process is not followed.

With regard to the first two instances, it is possible that in the interim the property that he desires to purchase will be sold to another person. With regard to the payment of the taxes, it is possible that he will incur the wrath of the tax collectors. With regard to the burial expenses, it is a sign of disrespect for the deceased to leave him unburied until the property is sold. And with regard to the widow and the daughters, it is possible that they need their sustenance immediately.

I.e., he must prove that the property was sold for ordinary reasons, and not because of any of the special factors mentioned in the previous halachah. The burden of proof is placed on the neighbor, because according to Scriptural Law, the purchaser has the right to the property. He is thus considered the owner, and the neighbor is considered one who desires to expropriate property from an owner. And in such situations, we follow the principle: “When a person desires to expropriate property from a colleague, the burden of proof is upon him.”

This is the ruling whenever a person denies entirely a claim issued against him.

Our translation is based on Sefer Me’irat Einayim 175:79, which explains that the purchaser does not know why the seller sold the field; he merely suggests the possibility that he sold it to pay the head tax or for any of the other reasons mentioned in Halachah 9.

The commentaries compare this to a case where a person claims that a colleague owes him a maneh, and the defendant replies: “I do not know if I ever was obligated to you.” In that situation, the Rambam rules (Hilchot To’en V’Nit’an 1:8) that the defendant is not liable.

I.e., because the purchaser is considered to have the right of possession (Sefer Me’irat Einayim 175:80).

I.e., the purchaser claims that the alleged neighbor does not, in fact, own the field reputed to be his own.

And not the owner.

See Halachah 8.

I.e., the neighbor must produce either the deed of title showing that the property is his or bring witnesses that testify that he has used the property for three consecutive years. If he cannot bring proof of this type, the property remains in the possession of the purchaser. And the purchaser is not even required to support his claim with a Rabbinic oath.

The Siftei Cohen 175:43 states that this law applies even when the orphans have a guardian who watches over their business affairs.

The Maggid Mishneh and the Ramah (Choshen Mishpat 175:47) state that this ruling applies only in situations where both of these factors apply: the purchaser is a orphan and below the age of majority. If only one applies – the purchaser is either a orphan or below the age of majority – the neighbor has the right to displace the purchaser.

And, as stated in Halachah 5, the rationale for granting a neighbor this privilege is the charge: “And you shall do what is just and good.”

For consideration should be given to an orphan’s position of distress.

The Maggid Mishneh and the Ramah (Choshen Mishpat 175:47) state that this law applies when a woman is known to have resources of her own, or she is a widow. Otherwise, we suspect that she is employing a ruse, and purchasing the property on behalf of her husband.

A person whose genital area is covered with flesh, and it cannot be determined whether he is male or female.

A person who has both male and female sexual organs.

Our translation is based on authentic manuscripts of the Mishneh Torah, the version possessed by the Maggid Mishneh, and the statement of the law in the Shulchan Aruch (Choshen Mishpat 175:47). It is also supported by the logic explained in the following note. The standard published text of the Mishneh Torah, however, states “a neighbor is given the right.”

The gender – or the halachic status vis-a-vis gender – of these individuals is a matter of question, and it is possible that they are [or are considered to be] women. As reflected by Halachah 11, the property is considered in the possession of the purchaser and the burden of proof is on the neighbor. Hence, in this instance, the neighbor must prove that the purchaser is not considered a woman halachically. Since that is not possible, the purchaser is allowed to retain possession of the property.
From this and the above concepts, we can derive another concept: That whenever there is a halachic question concerning the status of a situation, the purchaser is considered to have the right of possession, and the neighbor’s claim is not heeded.

See Hilchot Mechirah 24:1,8, which give some examples in which the owner of trees has rights with regard to the land on which his trees are located.

When stating this law, the Shulchan Aruch (Choshen Mishpat 175:51) adds: “even if the purchaser is a neighbor.” Sefer Me’irat Einayim 175:93 explains that this follows the understanding (see Halachah 5 and notes) that a partner has a closer relationship with the principal than does a neighbor.

See Sefer Me’irat Einayim 175:94, which explains that the Rambam’s wording appears to imply that if the owner of the tree or the building cannot expel the owner of the tree or building, they are considered partners. Rabbenu Asher and the Tur, however, do not share this understanding.

Note the Maggid Mishneh, which explains that based on this ruling, there are authorities who maintain that the rights of a neighbor do not apply with regard to houses, for the wall – a building – interposes between them. Others refute this conclusion, explaining that a building in a field is not likely to be tom down. Hence, the two fields are separate from each other. A wall between two homes, by contrast, may quite well be torn down if the same person owns them both.
From Chapter 13, Halachah 4, which speaks about the rights of a neighbor with regard to a courtyard, it would appear that the Rambam maintains that the rights of a neighbor apply with regard to houses. This conclusion is also evident from the ruling of the Shulchan Aruch (Choshen Mishpat 175:53), which states that the rights of a neighbor apply with regard to all landed property.

Rabbenu Yitzchak Alfasi offers both these explanations – a building and a ditch – for the Aramaic term mishunita mentioned by Bava Metzia 108b. The Rambam maintains that both interpretations are halachically correct.

There is no continuity between the two fields. Hence, the owner is not considered to be one whose property borders on the property being sold.