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Beit Midrash Series P'ninat Mishpat

Chapter 80

Trees That Were Planted in a Public Area

Various Rabbis 15 IYAR 5769
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P'ninat Mishpat (597)
Various Rabbis
79 - Mechila As Part of a Broken Agreement
80 - Trees That Were Planted in a Public Area
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The plaintiff (=pl) planted an orchard near his house, allegedly with the permission of his yishuv’s secretariat. Some time later, development began on the land for a new neighborhood. Workers have already covered some saplings and damaged a fence. Pl is demanding that work stop on what, according to his calculations, is his property, that he be compensated for the damage already done, and that the settlement (=def) transfer certain trees and install pipes, etc. in a new location. Def is unaware of any permission given to pl (the person who might have done so has died). They argue that development plans were open to the public and that the measuring system they are using is that of the Ministry of Housing, who also rejected a plan to move the new neighborhood to help pl. They are not responsible for pl’s mistake, although they are willing to pay around half of his demands as a good will gesture.

Ruling: The governmental measuring is the binding one, and thus pl built on public property. When one builds on another’s land who does not protest, he acquires a chazaka to certain rights (Shulchan Aruch, CM 153:2). This, though, does not apply in our case for the following reasons: The lack of public protest is inconsequential because people rely upon each other (ibid. 149:31). Also, there must be a potential short-term disruption to the owner’s ability to use his property at the time of the chazaka for the silence to be mechila. In this case, the future need was not evident. Also, when one’s continued use of the field will not only limit but eliminate the owner’s use of the field, chazaka must take place over three years. In this case, the orchard will prevent the area’s use for development, and there were not three years of chazaka.
When one plants his friend’s field with permission, he is to be reimbursed according to the value of his work (ibid. 375:1). The Maharit says that this is only if there was explicit permission, not the owner’s silence. The Knesset Hagedola says that lack of protest is like permission. In a case of questionable permission, the rule is that a public wins against an individual (Rama, CM 4:1) and in this case, then, def does not have to reimburse pl. However, beit din was convinced that pl acted with good intent and, therefore, expect def to make serious efforts to alleviate pl’s loss based on the idea that the community is like an important and richer person, who should try to go beyond the letter of the law. Therefore, they should try to move the orchard to another location and equip it. One of the cases where one may uproot fruit trees is if they ruin another person’s field or his ability to build (see Taz, YD 116:6). Acharonim dispute whether in such a case we demand of those whom it bothers to dig out the roots and replant. If it is feasible here, def should do so.
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