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Case: The plaintiff (=pl) built his home adjacent to the property of Family Y and, with their blessing, spent 42,000 shekels on a wall on their boundary. In the meantime, Family Y died, their inheritors sold the property to the defendant (=def), and now def has built a home on it. Pl demands that def pay for half the expense of the wall. Def, who at one point agreed to pay, now says that either Family Y already paid pl, or it was their responsibility to do so, not def’s. The inheritors refuse to come to beit din to adjudicate or tell what they claim happened. Def also brought estimates for such a wall for much less money.
Ruling: Because the Family Y inheritors refused to join adjudication, we are unable to consider giving them responsibility to pay. According to part of the beit din panel, def’s agreement to pay is considered a binding admission, and it relates to the wall as built, not a cheaper one that could have been built. However, it seems more likely that any admission was general, and not to a specific sum. It also seems that he did not obligate himself at a certain time of payment, and therefore it should be at the time that he benefitted from it, which was when def built his home and would have had to build a wall.
According to another dayan, if we can view def’s agreement to pay as a new obligation, it is only binding in a formal manner, in front of witnesses or with a document (Shulchan Aruch, Choshen Mishpat 40:1). If we view it as an admission about the past, the question is whether we will accept his claim that he did so only as an initial gesture to begin on good relations with his new neighbors. The K’tzot Hachoshen (80:1) cites a machloket Acharonim whether such an excuse (known as an amatla), beyond the two excuses recognized by the gemara, can work to undo an admission which gives another person monetary rights (for religious matters, it does work). Here there is an additional reason to say the admission was based on a mistake, as def now points out that it is possible that Family Y already paid. Therefore, we need to see if def has an obligation, as the present neighbor, based on the merits of the claim.
The obligation to take part in building the wall begins only when the wall becomes a need of the neighbor as well, whether based on Halacha or based on the law and prevailing minhag. Thus, Family Y could not have been forced to pay before they started their own building, an event that did not take place. Since one is assumed to not pay before the time he is required to (Bava Batra 5a), Family Y is presumed to have not paid. Since the nature of the obligation in taking part in a separating wall depends on property ownership and is not personal, def would become obligated upon buying the plot, and therefore they must pay.
Since it would cost more money than it is worthwhile to pay an appraiser for the cost of a simple wall, we accept the higher of the two estimates of the experts that def produced. Def must pay pl half of that amount.
P'ninat Mishpat (832)
Various Rabbis
543 - Deceptive Developer
544 - Who Should Chip in How Much for a Joint Wall?
545 - How to Calculate Interest on Investment
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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.
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