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P'ninat Mishpat

קטגוריה משנית

Case: The plaintiff (=pl) wants to rent a home in a yishuv (a communal settlement) (=def). The yishuv’s rules state that one must be accepted by the va'adat kabbala (=vaka; acceptance committee) in order to do so, and vaka rejected pl. She claims that the head of vaka attributed the decision to her age and lack of financial resources and that these reasons are unacceptable. Furthermore, pl argues that no group should have authority to limit who can live on government-owned land, and that the halachic requirements for such a rule were not met. Def responds that the need for acceptance to the yishuv by vaka is the minhag of the yishuv from its inception and that private statements of the head of vaka do not have public standing.

Ruling: Beit din will not express an opinion on the legality of a vaka according to the law of the land. If it is against the law, it should not be used.
A community of people, which can take various forms (municipal, professional, etc.) may decide on rules that govern their dealings. However, the gemara says that their decisions must be approved by an adam chashuv (important person) (Bava Batra 9a). The context in the gemara is a group of shochtim who assigned specific days to different shochtim and penalized those who did not conform. Rava disallowed their rule because it had not been approved by an adam chashuv. There is a machloket among the poskim whether this requirement applies only to groups with special interests (e.g., professional societies) in order to prevent abuses of individuals’ rights, or whether cities are thus limited (see Rama, Choshen Mishpat 221:28). The opinions may depend on different approaches to the reason the adam chashuv’s approval is needed: for his honor or to ensure that the decisions are proper (see Ritva and Ran, Bava Batra 9a). The matter of honor may apply to all settings, whereas concern about bad decisions is greater in the professional context. It is also possible that all agree that the adam chashuv is needed to prevent bad decisions and the disagreement is where that concern is sufficiently significant.
The Chatam Sofer (CM 116) says that the need for an adam chashuv’s approval of municipal rules is a minhag that is not halachically binding. Perhaps for this reason people cannot void decisions of the Knesset, which lack such approval. If we assume the adam chashuv in the community is its rabbi (which is not necessarily the case), we should point out that the rule to require approval of vaka was created well before the yishuv had a rabbi. The requirement is certainly only for creating a rule, not for each time one is implemented. Otherwise, no municipality would be able to function normally, and overuse would actually be disrespectful to the adam chashuv.
Therefore, def is allowed to reject a potential resident based on vaka’s rejection. The yishuv should have an apparatus for handling complaints of vaka’s fundamentally flawed use of their authority, and if this is not being done, the complainant can turn to beit din.
[Next issue will deal with the correctness of vaka’s considerations.]