Mishpetei Eretz 

A Collection of Essays in Halachic Law

Volume III

Property and Trade in Halachic Law

Synopsis of Articles

The halachic status of custom and civil law in commerce

Commercial activity takes place within an environment of civil law and custom, and is therefore affected by them. Rabbi Dov Lior considers the halachic status of custom in regards to acquisition acts, and holds that acts of acquisition that are accepted in the marketplace have halachic validity according to the Torah, even when merely oral actions are concerned, such as giving a credit card number. Rabbi Lior also holds that the rule  ‘The law of the kingdom is law’ also applies to the laws of the State of Israel, and therefore, any law concerning property that is not contrary to Halacha and that is intended to benefit the public by means of the regulation and proper management of commercial life has halachic validity.

The Definition of money

Money is widely used in commercial life, and in Halacha. But it is precisely the considerable involvement of money in the various processes that makes it difficult to define its nature. Rabbi Dr. Aharon Lichtenstein considers this question and raises two main definitions of money — one according to the identity of the item, such as a coin, and the other according to its function in the process. These definitions are derived from a study of the laws of acquisition, barter and redemption of Ma’aser Sheni, and he explains that the Rishonim disagreed on the question of the decisive factor in the definition of money.

Is waiver an admission? A re-examination of the approach of the Geonim

A person can waive a debt owed to him by his debtors. The Gemara states that if someone sells a promissory note to another and subsequently waives the debt, the debt is waived. Rabbi Dr. Baruch Kahana examines the approach of the Geonim on this rule, and he shows that one can derive from it an innovative approach of the Geonim in understanding the concept of a ‘waiver.’ According to this approach, a waiver is based on an admission, i.e., on the creation of evidence that the debt does not exist and not on a substantive cancellation of the debt.

The principles of acquisition — intent and the act of acquisition

A transfer of ownership requires an act of acquisition and intent of the parties to the transaction. Rabbi Dr. Ron S. Kleinman considers the question whether the act of acquisition expresses or creates the intent by means of which the ownership is transferred, and therefore if it transpires that there is intent even without an act of acquisition, this will be sufficient in order to transfer the ownership, or whether the act of acquisition is required as an independent element for the transfer of ownership irrespective of the degree of intent inherent in it, and only by means of an act of acquisition can ownership be transferred. The author shows that the first possibility is the accepted approach of the Rishonim and the Aharonim.

‘Situmta’ — the power of custom in property law

Acquisition by way of ‘Situmta’— an act of acquisition that is accepted among traders and that binds them also according to Halacha  — is prominent amongst the methods of acquisition. Rabbi Daniel Katz cites the opinion of the Rishonim in understanding the validity of this acquisition, and shows that the main approach is that ‘Situmta’ expresses the recognition of the validity of the custom accepted in the world of commerce as something that binds the parties. Apart from this approach, some Rishonim explained the’Situmta’ as a special enactment of the Rabbis or even as the well-known and accepted barter acquisition. There are many ramifications of the definition of a ‘Situmta,’ including the question whether the custom of buying movable property with money is valid, even though the Rabbis cancelled this method that was stipulated in the Torah.

Division and restriction of ownership

In many cases there is a need or desire to divide ownership in various ways between various people. These divisions give rise to the basic question of what is ownership. This question is discussed by Rabbi Ido Rechnitz who addresses two types of division — time sharing and a division of rights. With regard to time sharing, the Rishonim and the Aharonim disagree as to whether a right that is limited in time constitutes ownership. With regard to the division of rights the Posekim are also divided on the question of whether a limited right constitutes ownership. These theoretical questions have practical consequences; for example, the question of the division of rights arises with regard to an offer to protect copyright by leaving the right to make copies with the seller.

Property transactions of a minor

The question of confiscation of items of student property in schools for punitive purposes is raised from time to time by Posekim. Rabbi Chaim Yoel Bloch examines in his article the question of the ownership of those items. The halachic status of minors does not allow them to carry out ordinary property transactions in a valid manner, but many other ways in which the minor can acquire the articles and become their absolute owner are examined in the article, whether by means of ‘Situmta,’ whether under the laws of the state, whether by means of an agent such as a guardian or whether as wages for work or an inheritance.

Public ownership in Maimonides’ halachic writings

Where there is ownership there is also an owner. When we speak of private ownership it is usually easy to identify the owners, but when we speak of public property the matter is more difficult. In his article, Rabbi Prof. Ben-Zion Rosenfeld discusses public ownership in the works of Maimonides, and he distinguishes between two substantially different types of ownership: one is a partnership of the public in the ownership of property and the other is ownership of the whole nation as an independent entity.

Where partnership is concerned, the control of the property can be exercised and the ownership can be transferred by public representatives. Such control does not negate the personal rights of each of the individuals who are members of the public. By contrast, national ownership does not recognize individual rights, and its significance is that the property belongs to the nation as one body.

International commerce between Jews and non-Jews

The world of commerce brings sellers and buyers together, including Jews and non-Jews. Rabbi Michael Yomtovyan examines in his article several aspects of commerce between Jews and non-Jews, including which acts of acquisition are valid between Jews and non-Jews, and whether acts of acquisition that are valid according to Rabbinic enactment were enacted solely for the purpose of commerce between Jews or whether also for commerce with non-Jews. It emerges from the article that although stealing from a non-Jew is prohibited, nonetheless the special rules of fairness in the Halacha  are binding only in commerce between Jews. In conclusion the author examines the effect of the place where the transaction is made on the laws that govern it. The conclusion is that apparently the law prevailing in the place where the transaction was made should be applied.

Contemporary transfer of land ownership

The purchase of an apartment is a long process with many stages. Rabbi Yoezer Ariel considers the question of when the ownership is transferred, with regard to two lawsuits that were heard in his Bet Din: one concerned the sale of an apartment that was cancelled and was afterwards carried out, in which it was held that the sale deed and the payment did not complete the acquisition process without registration at the Land Registry. In another case, additional construction was carried out in a building, and one of the neighbours was sued to contribute to the expenses. The conclusion of the Bet Din was that since the extension was not registered at the Land Registry, it was not possible to compel the neighbour to pay for the mere construction, but only for the part of the extension that he used.

Thoughts on the status of the Land Registry according to Halacha

Rabbi Dr. Michael Baris seeks in his article to strengthen the outlook that registration of land at the Land Registry has the validity of a sale of an apartment from a halachic viewpoint without any need to resort to the laws of ‘Situmta.’ Moreover, without registration at the Land Registry the sale does not take effect, even according to the opinion of Posekim who have written that the registration is not essential, since after they wrote this the civil law was changed.

The act of acquisition in the sale of an apartment

The process of selling an apartment includes several stages, which makes it difficult to determine the precise moment when the ownership of the apartment is transferred from the seller to the buyer. Rabbi Chaim Vidal examines the halachic status of the various stages and distinguishes between the date of commitment to sell the apartment and the date of transferring the ownership. According to him, in certain circumstances the transfer of possession in the apartment can be an act of acquisition. The registration at the Land Registry can also serve as an act of acquisition, and at least constitute a condition that will delay the transfer of ownership when the parties indicated that this was their express wish.

Floating charges on the properties of individuals

A well-known concept in Israeli law is the ‘floating charge,’ which allows a charge to be placed on the debtor’s assets, including those that he has not yet received, but it does not apply to those that have left his ownership before the charge crystallizes. Dr. Michael Wygoda surveys the existence of such a concept of ‘charge’ in Jewish law, and he draws conclusions from it with regard to Israeli law that is embarrassed by its inability to create such a concept when it is not dealing with a company. For this purpose he mainly considers the issue of a ‘that I will acquire’ charge — a charge on assets that the debtor will acquire — and the principles concerning such a charge in the Talmud and the Rishonim.

The halachic status of a ‘licensee’,  and the waiver of licence

The land laws create various types of ownership and property, including a ‘licensee’ arrangement, which is mainly used in agricultural settlements and settlements in Judaea and Samaria. Rabbi Natan Chai discusses, in a decision, the halachic status of a ‘licensee,’ and he concludes, after examining halachic and legal sources, that a licence is a property right according to Halacha . In view of this, he considers the question of the waiver of this right in an oral conversation. In passing he recommends taking care to follow procedures and use documents that will prevent uncertainty and property disputes.

The halachic status of a cautionary note

One of the important stages during the purchase of an apartment is the registration of a cautionary note on the property in favour of the buyer, in order to ensure that the apartment is not sold to someone else. Rabbi Sinai Levy proposes in his article several possibilities of defining the significance of a cautionary note in accordance with the Halacha , whether as a civil law that has also been accepted by the Posekim because it was intended to benefit the public or as a charge that is imposed on the seller’s property for the purpose of selling the property. Following this he examines several cases such as the sale of an apartment (‘on paper’) that has not been built yet, and he discusses a complex case of a combination transaction in which a contractor registered cautionary notes in favour of several buyers and subsequently disappeared, leaving the buyers in conflict with the land owner.

Liability of a buyer who takes an item for examination

Rabbi Shlomo Ishon considers the question of the liability of buyers for damage or loss that happened to goods during the purchase process. He shows that there are several factors that affect halachic decisions in this field: a. whether the price of the item is fixed; b. whether the item is desirable to the buyer or the seller; c. whether the buyer took a certain item for examination, or he took several items in order to choose one of them.

Purchase of a non-specific item with a credit card

One of the measures that have changed the face of commerce is without doubt the credit card. Rabbi Dror Tawill took upon himself to investigate thoroughly the halachic ramifications of carrying out a transaction by means of a credit card payment, and especially the common type of transactions where a certain type of item is bought without the buyer choosing a specific one for himself. The author examines whether this is an acquisition or a commitment, and also whether even when there is no legal obligation there is a moral duty to complete the transaction, and in what circumstances are the parties exempt from it.

Automatic purchase

In the past sales were made directly between human beings. Rabbi Itai Elitzur considers the question of the moment when ownership is transferred in cases where the transaction is made between a buyer and a machine, such as at self-service petrol stations, buying food from a machine, and ordering a product by Internet for it to be delivered by mail. He also considers the question of the moral duty to complete the transaction in these cases, according to the law of ‘He who punished…’ (Mi Shepara).

The law of price-fraud today

According to the laws of price-fraud (Ona’a) it is forbidden to sell for a price that is different from the market price, and when the difference between the price paid and the market price is more than one sixth, the transaction is void. Today, because of the complex structure of the market, it is difficult to determine the market price and the question arises as to what is considered price-fraud. This question is considered by Rabbi Zalman Nechemia Goldberg who holds that it is possible to determine a market price even when the same product is sold at different prices. He says that the price is determined according to the majority of shops but sometimes there are additional considerations such as whether the shop is a ‘high-quality shop’ or a sale of basic products where the price is the same everywhere. In such cases the manner of determining the price will of course be different.

The law of price-fraud today

With regard to the question of determining the market price in the present day, Rabbi Asher Weiss claims in his article that the ability to buy and sell from all around the world with great ease creates a situation in which there is no market price, and it constitutes a kind of agreement of the parties to the transaction to waive the laws of price-fraud (Ona’a). This does not apply to products that are subject to regulation, where there is a ‘market price’ according to which the laws of price-fraud do apply.

Cancellation of a barter transaction

A cancellation of transactions as a result of a defect in goods gives rise to many questions. Rabbi Zvi Yehuda Ben-Yaakov discusses a barter transaction of a car for a motorbike, when the car is discovered to be defective and many attempts are made to repair it. After a lengthy discussion of the question of the laws of price-fraud in barter transactions, the author arrives at the conclusion that a cancellation of a purchase because of a defect voids the sale according to all opinions, even in the case of a barter transaction. In addition he considers the question whether there is a basis for finding the buyer of the motorbike liable to pay for use of the motorbike prior to the cancellation of the transaction. He proposes the novel idea that in a case of a ‘barter of two similar items’ the return of the motorbike is like a payment of money’s worth and not like the returning of the item to its original owner, and therefore there is no basis for finding a liability to pay for the use. In passing he discusses the question of a liability in torts as a result of bad advice.

A disagreement on the nature of a product that was ordered

Sometimes there is a disagreement between two parties to a transaction with regard to the nature and quality of the product that was ordered. Rabbi Ovadya Ahituv discusses such a case where the item that arrived did not meet the expectations of the people who ordered it. The question that arose was who is liable in such a situation. The author considers various rules of interpreting a transaction: in the strictest manner, according to the amount of the payment that was agreed, according to the common interpretation, and according to the question of who has possession. In addition he considers other questions concerning the cancellation of a purchase as a result of a defect, such as the duty of the buyer to examine the item, etc.

Goods that were declared unmarketable by an order of the Ministry of Health

One of the significant problems in the world of agricultural trade is the status of goods that have been ruined in transit from the farmer to the marketers. This question was considered by Rabbi Yehuda Zoldan when he sat on the Gush Katif Bet Din. A special factor in a case that was brought before him was the involvement of the state that delayed the marketing for health reasons. In a reasoned decision he imposes most of the liability for the goods being ruined on the farmer. According to him, this involvement of the state is beneficial, and it is one of the risks for which buyers are not liable. Since there was a factual basis for saying that the goods were defective before they were transferred to the marketer, the purchase was made in error and could be cancelled, and the farmer was liable to bear the loss. The farmer appealed the decision, and in a further decision it transpired that the marketers were also negligent in storing the goods. Since there was a difficulty in deciding to what extent the negligence affected the damage to the goods, it was decided to make a compromise between the parties and to find the marketer liable for a third of the consideration that he undertook to pay.

“Did you conduct your business transactions faithfully?”

Integrity is one of the conditions for the establishment of a flourishing economic market. However, despite vast efforts, no legal system is capable of forcing the workers in the market to act with integrity. Rabbi Avraham Giesser analyzes in his article the importance of integrity and honesty in commerce; even, perhaps especially, when it is not possible to obtain a remedy in the legal arena. The article focuses on those breaches of trust which fall beneath the threshold of legal enforcement – Mechusar Amana (lacking in trustworthiness or integrity) and a person who is subject to the curse known as Mi She’para (based on the Mishna in Bava Metzia 44a). Rabbi Giesser’s main thesis is that integrity in business is a precondition for the establishment of a mature market, and indeed to the existence of human society as a whole

Restrictions upon free competition

Is there a basis for protecting small business against large chains? This question was brought before Rabbi Yosef Gateno (זצ"ל) when shop owners asked the Bet Din to prevent the opening of a large shopping centre in the area. In the decision he discussed questions concerning the welfare of the residents who will be benefited by the lowering of prices, and also the prohibition of unfair competition, while focusing on the approach of the Aviasaf who prohibited the opening of similar shops in the same street. But apparently this approach has not been adopted by Halacha, and if it was taken into account, it was considered with regard to cases that are different from the one under discussion.

Misrepresentation as to whether the transaction is worthwhile

Often when transactions are made the parties make a false representation as to whether the transaction is worthwhile. Rabbi Dr. Moshe Be’eri examines the position of the Halacha on this issue, and he concludes that when the two parties can ascertain whether it is worthwhile, the party that lost out has no right to cancel the transaction. But in cases where one of the parties to the transaction cannot discover whether the transaction is worthwhile without receiving information from the other party, then the misrepresentation constitutes a sufficient ground for cancelling the transaction.

Ethics and morality in commercial companies

The limited liability company is a new creation of the modern economy. Dr. Aviad Hacohen discusses in his article the question whether it is possible according to Halacha  to make the company a cover for criminal offences and corruption, since prima facie no one is really liable for the actions of the company. He finds several halachic and other sources that require the owners of the company to satisfy moral and halachic injunctions. Subsequently he discusses fundamental questions of the morality of companies, such as the sale of arms to countries that do not act morally, giving bribes by means of commercial companies, employing workers on inapropriate terms, etc.

The prohibition of participating in pyramid schemes and MLM (multi-level marketing) and its civil law ramifications

The question of the business model of pyramid schemes and multi-level marketing, in which participants are promised large profits that sometimes turn out to be false promises, is a recurring issue. Rabbi Arie Volhendler and Rabbi Shmuel Polachek thoroughly examine the halachic problems involved in trade of this kind and they say that a distinction should be made between a case where a livelihood is made from the sale of a product and a case where the profits derive from bringing in new participants. They explain that in the second case there are certainly real halachic problems according to the laws of price-fraud and erroneous purchase and as a result of misleading the innocent participants who are enticed into thinking that they are dealing with a real business. Apart from this, they discuss the question of the public interest as a halachic-moral guide that casts a shadow upon engaging in this type of business.

Apartment sale contract

In order to introduce a system of conduct based on Torah law precepts, Rabbi Dr. Itamar Warhaftig proposes an apartment sale contract. This is needed so that the apartment sale process can be conducted in a manner that is valid according to Halacha, without violating the prohibition of interest. The contract offers methods of enforcement, a halachic solution to difficult questions of defects in purchases, and determines that the arbitrator if there is a dispute will be a Bet Din.

Car sale contract 

Buying a car ends in very many cases with a claim in the Bet Din. In order to prevent this, Rabbi Hillel Geffen proposes a car sale contract according to Halacha. The problems that the contract solves are the question of defining the date when ownership is transferred, the concern of interest, the halachic validity of a commitment to sell, discovering defects after the sale, etc. On all of these issues the author raises the difficulties and the possible solutions and at the end of the article he gives a comprehensive and proper text for a contract.

Property lease contract

The Mishpetei Eretz Institute has set for itself a goal of building a comprehensive set of halachic services that meet the requirements of society, and especially creating an awareness of the need to sign contracts that are in accordance with Halacha . The first step in this process was the preparation of an apartment lease contract by Rabbi Ido Rechnitz, which satisfies both the halachic requirements and legal requirements of such a transaction.

Looking at ownerless property — the inner meaning of intent in acts of acquisition

Usually in order to buy something an act of acquisition is needed, yet the Gemara discusses the possibility of acquiring something that has no owner simply by looking at it. Rabbi Yehuda Yifrach discussed the opinions of the Rishonim on this issue and shows the conceptual progression implicit in their approaches, starting from the approach that looking is sufficient on its own, then one that requires a small act and finally the practical ruling that is accepted, which requires a real act for the purpose of the acquisition. Most of the article is devoted to analyzing these methods in view of the inner teachings of the Torah and Hassidut, in accordance with a lesson of Rabbi Yitzhak Ginsburg, who drew a parallel between the various views on this issue and the worlds mentioned in Kabbalah, and the significance of will without action in each of them.

The prohibition of cheating in commerce according to the inner teachings of the Torah

The Torah discusses extensively the serious prohibition of cheating in business, which is also called an ‘abomination’. Rabbi Yaakov Binyamin examines the prohibition according to the inner teachings of the Torah and suggests that its seriousness derives from the fact that G-d has the attribute of truth, and also because the power to cheat in business derives from the special wisdom that exists in the land of Israel, which is intended for the study of the Oral Torah. In addition the author discusses how doing business honestly is very important because it extracts the sparks of holiness that fell during the ‘shattering of the vessels.’