P'ninat Mishpat: Did Any Furniture Go to the Buyer? – part II | Beit Din Eretz Hemda - Gazit | Beit Midrash

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Case: The plaintiff (=pl) sold her apartment to the defendants (=def), who had previously rented the apartment from her. Beit din solved most of the disagreements between the sides about the sale by means of compromise, except for the following. Def says that based on agreement and on common practice in their city, the furniture of the small rental unit is sold along with the apartment. Each side has ancillary monetary claims regarding the furniture if it belongs to pl. Pl demands payment for def’s use of that furniture until now. Def, who claims not to have used it, says that since pl is asking for payment for what happened in the meantime, they will demand payment for storing the furniture during this time. While the contract states that furniture that is not permanently connected to the apartment goes back to pl, def claim that the built-in oven is included in the sale. Pl is also suing def for allowing pl’s divorcee to take books that he had no right to from the apartment.

Ruling: We dealt with the first two issues last time.
Built-in oven: On the one hand, there is no obvious reason that the built-in oven is different from the rest of the furniture/appliances. The fact that it is plugged into the wall when used is obviously not a good distinction, as this is the case for many other appliances, including a refrigerator, about which def did not complain when pl took. Also, the fact that it fits into a certain area in the kitchen is not a factor, as this is common for kitchen appliances, and one just orders standard sizes that fit these areas.
However, during the negotiations in beit din over the main compromise, def raised the issue of the oven and pl answered cryptically, "Yes," in a manner that seems to clearly indicate that she was admitting that the oven was to remain. Pl counters that one cannot turn one word that was said in the course of discussion into an admission. However, pl is incorrect, as admission can even be made out of silence, if it is indicative of admission in context (Shulchan Aruch, CM 138:6). It is true that if the admission is not clear, the admitter can explain his intention in a way that it is not admission. However, pl did not succeed in doing that, and just saying it is too cryptic is insufficient. To additionally strengthen the ruling, since def is now in possession of the oven, if there were doubt, the burden of proof would be on pl.

Responsibility for taken books: There are no proofs that def accepted responsibility as a watchman over pl’s books, just that they allowed the books to stay in the apartment, and acceptance is required to obligate a person as a watchman (Bava Metzia 81b; Shulchan Aruch, CM 291:2). Even if they were watchmen, since they were not paid and did not benefit, they would be shomrei chinam who are obligated only for negligence. In beit din’s eyes, there was not negligence, since def did not see what was written in the divorce settlement and were not warned not to give him any books. Furthermore, def claim that the divorcee took only his own books.