Yeshiva
Beit Midrash
- Sections
- Chemdat Yamim
- P'ninat Mishpat
Ruling: One can demonstrate from gemarot (including Pesachim 6b- see Rashi, ad loc.) and poskim that "possession" can be synonymous with ownership. On the other hand, there are sources (including Bava Kama 68b) where a clear distinction is drawn between ownership and possession. [Ed. note- Perhaps of greater significance, in Modern Hebrew, both meanings are used.]
When the text of a written agreement can be understood in different ways, the burden of proof is on the person who needs to use the document to effect a change (Shulchan Aruch, Choshen Mishpat 42:5). We assume that the people who wrote the document were careful with their language (ibid. 61:15). Therefore, def does not have the authority to sell the apartment to a third party without pl’s permission.
However, it is possible that, as a result of the agreement, the couple no longer shares practical ownership of the apartment "fifty-fifty." This is because, in addition to 50% titular rights, def has control of the apartment throughout her life. It is important to determine whether, besides living in the apartment, def can rent out the apartment to a third party and keep all of the rent. If so, an appraiser should determine what percentage of the apartment each side is to be seen to have as a result of the agreement. The apartment can then be sold according to the percentages of relative ownership.
The Rashba says that a widow, who has the right to stay in the home she lived in with her deceased husband despite inheritors’ objections, does not have the right to rent it out if she prefers. However, he explains that this is due to the widow’s lack of full rights to the apartment, and one can infer that if someone rented the home, they could rent it out to someone else. The Rambam and almost all Rishonim agree (see Tur, CM 316). Regarding Reuven who gave Shimon the right to use his apartment, the Rama (CM 316:1) says that Shimon can rent out his right to someone else. However, the Shach (ad loc. 4) cites the Maharshal who argues, and, in general, sources indicate that one should try to determine intention of the one who gave the permission. It is most likely that all agree in regard to the principle of following the intention, and they argue about what the assumption is in certain cases.
In this case, where there was an acrimonious divorce, there is no reason to assume that pl gave more rights than that which is found in the wording of the agreement. Therefore def has to prove that she had the ability to rent out the apartment to someone else. Otherwise, pl maintains 50% to the apartment, according to the way it is listed in the Tabu (Land Registry).
P'ninat Mishpat (835)
Various Rabbis
150 - Who Is Allowed to Build the Plaintiff’s Apartment?
151 - Unclear Language in a Divorce Settlement
152 - A Sales Contract Signed by Only One Spouse
Load More
Various Rabbis
Various Rabbis including those of of Yeshivat Bet El, such as Rabbi Chaim Katz, Rabbi Binyamin Bamberger and Rabbi Yitzchak Greenblat and others.
Moreshet Shaul Moreshet Shaul: A Crown and its Scepter – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 294-5
P'ninat Mishpat P'ninat Mishpat: A Contractor’s Leaving the Job in the Middle – part I
based on ruling 84013 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
Rabbis in Midrash
Lessons
fast navigation
Various Events FOR WHOM NOT TO VOTE
Rav Zvi Yehuda Kook stressed that Israeli politics is G-dly, so I have no problem answering this common question on a Torani blog. Also, Free-Will is a G-d-given right and obligation, to "destine one's fate" (R. Soloveichik, Kol Dodi Dofek, 67), so I obviously don't tell others how to vote. But once not a few (especially young) have already asked, a couple of personal words from experience and thoughts from chazal & Rav Kook which may be of help to others, mainly for whom NOT to vote.
P'ninat Mishpat Fallout from Failure to Install Elevator – part II
based on ruling 85007 of the Eretz Hemdah-Gazit Rabbinical Courts
