TAMA 38 and Pinui-Binui in Halacha [3]

In the previous articles, the purpose of the law and its main provisions were presented, and some of the discussions regarding the objection of some neighbors to the implementation of the program were also brought. In this article, we will present further arguments raised by neighbors for objecting, as well as the opinions of the poskim regarding the right to implement TAMA when some of the neighbors object.

Also: whether one can claim a mistaken transaction in a case where some of the neighbors sold their rights in the roof to a resident at the price of a roof for construction, and after the sale it became clear that there is a possibility of TAMA, whose value is greater than what was sold; can the seller cancel the sale?

Reasons of the poskim that the residents can be compelled to carry out the program

There are dayanim who tend to rule that compulsion is possible, for several reasons. The first reason is based on the novel ruling of the Netivot HaMishpat (siman 178, Biurim, se’if katan 3), that a person can compel his fellow to participate in expenses for a need that is necessary for both of them, even when they are not partners in the property, and even an individual can compel the many. So too regarding TAMA: since strengthening the structure is a necessary need for all the residents, even one person can compel everyone to participate in the effort and expenses.

The second reason is that a person who purchases property in a residential building undertakes to act in accordance with the standard regulations found in the law, and since the above program is included in the standard regulations, he can be compelled to implement it. Likewise, based on dina de-malkhuta dina, the law of the kingdom is law, since the law determines that one can compel implementation of the program.

There is also the argument of a claim of “gud o igud” and a claim for division {as brought in a previous article}. Likewise, based on the rule that one may be compelled not to act in the manner of Sodom, since the resident has no use of the roof, he can be compelled to agree to the construction and will receive the other benefits given to all the residents.

The views of those who maintain that the program cannot be imposed on the objecting neighbors

I saw in the article of HaGaon Rabbi Yehudah Silman (Otzar HaMishpat, vol. 1) that after discussing the reasons brought above, he wrote that there is no possibility of compelling the residents to implement the program. He explained that what was brought from the words of the Netivot (cited above) is, at first glance, not comparable to our case. The explanation is that the words of the Netivot were said regarding what the Rema wrote (Choshen Mishpat, siman 178, se’if 3), of blessed memory: if the partner objected that it not be done, for example, one built a structure and the other protests, if it is something impossible to refrain from building, his fellow must give him his share. But if it is not necessary to build, his fellow may say to him: “Take your wood and your stones.” The Netivot HaMishpat (there, se’if katan 3) explains that this is referring to a house that collapsed, and one of the partners wishes to rebuild it, but he cannot build unless his partner also gives his share of the expenses. About this the Rema wrote that he can compel him to give his share, and if he does not give, the beit din descends to his assets. The reason is that the need to rebuild the house is necessary for both of them, and he must give his share.

The Netivot HaMishpat innovated that this law is not specifically limited to two people who are partners; rather, any need that pertains to two people allows them to compel one another to bear the expenses. He brings proof from the Mishnah (Bava Batra 7b): the residents of a city compel one another to build for the city a wall, gates, and a bolt; similarly, residents of an alleyway and residents of a courtyard compel one another to do things necessary for them, even though they are not partners, because they have a necessary need for building a wall and the like, and all must bear the expenses. Likewise, any necessary need shared by two people allows them to compel one another to bear the expenses.

The Netivot HaMishpat added that even if the house collapsed completely and nothing remained except the land on which the house stood, they can compel one another to bear the expenses, because the land is not designated for any other purpose, only to rebuild the house upon it, and this is considered saving the house from damage. One who incurs expenses to save his fellow’s property from damage can compel him to bear the expenses, because the rescue was necessary for him. For this reason the Netivot HaMishpat wrote (siman 164, se’if katan 1; 264, se’if katan 6) regarding one who saved his books and his fellow’s books, that if he acted with both in mind, he can compel him to pay half the expenses.

This is also explained in Divrei Malkiel (vol. 3, siman 157) regarding someone who spent a great deal of money to obtain a government license to produce sweet scented water, and another person came and also opened such a factory, and advertised the product using the license number that the first had received. The first sued him to pay part of the expenses he had incurred to obtain the license. It was ruled that wherever there is an expense and an action in which the benefit of two people is shared, they are considered partners in the matter, and they compel one another to give a share in that expense. Even if he did not spend with the intention that his fellow would give his share, nevertheless, since the other publicized the license number, he revealed that he was pleased with the expenditure and is obligated to give his share.

The reality of TAMA in our times

He wrote that it does not seem possible to define TAMA 38 as a great necessity. Although there were indeed strong earthquakes in the region of Eretz Yisrael approximately once every hundred years [in the years 5520, 5597, 5687; 1759, 1837, 1927], and perhaps there is room to be concerned about an earthquake, Heaven forbid.

However, it is difficult to ignore the reality that this fact does not arouse worry and fear in people’s hearts to strengthen the buildings in which they live. It is not common for residents to decide, without the state’s benefits, to spend their own money and strengthen the building. Moreover, despite the great benefits that the state gives to those who implement the program, very few buildings in the country have implemented it. Of course, this depends on each period, according to the quantity of such programs being implemented, and depends greatly on the discretion of the dayanim hearing the case.

Rejecting the reasons that compulsion is possible

One of the reasons the neighbors claim that one can compel is that every person who buys an apartment in a residential building signs with the understanding that he undertakes to act according to the standard regulations, and since the TAMA program is included in the standard regulations, they believe one can compel. But this can be rejected by saying that not in all places is it accepted and customary to strictly observe the legal rules concerning the use of common property [depending on the character of the residents], as reality demonstrates. Therefore, it is not certain that halachically this is included in the standard regulations. There is also another argument of the objecting neighbors: during construction they must leave the house and live in rental housing elsewhere, and they do not wish to do so. This is another reason for the views that maintain that one may object.

An argument based on the need for a mamad safe room

There are places and regions in the country where mamad rooms are necessary from a security standpoint. I have seen that some dayanim maintain that in this case the neighbors can be compelled even if it involves effort, as explained in the Netivot HaMishpat (Biurim, siman 178, se’if katan 3): anything in a partnership that is necessary and one does not wish to do it — they are compelled. If so, this issue is not necessarily connected to TAMA 38.

A courtyard attached to the house

Until now we have discussed a case in which the neighbors granted a right of use. But regarding rights purchased from the landowner or the contractor, this reasoning does not apply, for it was not the neighbors who granted him this use. Therefore, one must discuss whether he can prevent implementation of TAMA on the basis of this claim. Indeed, as long as the building stands in its present form, he has a servitude right in the airspace that they not darken his dwelling. Nevertheless, one can say that the neighbors decided to change the designated use of the jointly owned airspace above, converting it into land use for construction; and since today most courtyards suitable for expansion are designated for such use, it follows that they suffer a loss by being prevented from using it, and this airspace is no longer encumbered to the lower resident to leave it empty. Or one may say that the airspace is encumbered to him. I have much to write on this, but this is not the place.

A claim of mistaken transaction in the sale of a roof when it became clear that there is a possibility of a TAMA 38 program

There was a case of a resident who obtained signatures from all the residents of the building that he was buying from them the roof and the other rights in the property in exchange for payment. After some time, the residents learned that the building had the possibility of a TAMA 38 program, through which the residents could receive a profit much greater than what they received for selling the roof and rights to the neighbor. One must discuss whether the sale of the roof to the developer is considered a mistaken transaction, since had they known there was a possibility of TAMA in the building, they would not have sold to the resident at this price, but only for what is customary to receive when selling rights for TAMA; with whom does the law side?

The law depends on whether, at the time of the sale of the roof and rights, there was an approved TAMA program for the property

One must know that an agreement signed on its own, if it lacks effective kinyanim, may be retracted from, though there is an issue of being “lacking in faithfulness” {as explained at length in the article “The Force of an Oral Agreement in Reserving a Place for Vacation”}. The entire discussion here is only in a case where an agreement was made with effective kinyanim {as explained extensively in the previous articles regarding the types of kinyanim recommended for agreements that are effective according to Torah law}.

If at the time the agreement was signed with the resident there was no possibility of TAMA in the building, and only afterward this possibility arose, the law in this matter is like a purchase that appreciated after the buyer acquired it; there is no claim of mistaken transaction [and there are several sources for this, but this is not the place to elaborate].

However, if it is clear that at the time of the agreement there was a possibility to implement TAMA 38, only the residents did not know of it, this is like one who sold bad wheat and it was found to be good: the seller can retract because of a mistaken transaction, as explained in the Shulchan Aruch (Choshen Mishpat, siman 233, se’if 1), since at the time of the sale he did not know that it was good. The residents are believed to claim that had they known the program could be implemented, they would not have sold the roof for the sum they received.

Where at the time of the sale there was uncertainty regarding the possibility of TAMA

But if at the time of the kinyan there was uncertainty whether TAMA 38 could be implemented, there is no claim of mistaken transaction, because we say that the residents sold the roof with this understanding: even if there would later be a possibility to implement the program, they would not be able to retract. Therefore, in every sale of roof rights or in any other agreement, it is recommended to consult experts on the matter to check this issue, and other matters as I discussed at length in previous articles, since these topics often reach court hearings and arbitrations, and with proper consultation this can be avoided.

The approach of the poskim regarding one who sold ore that might be gold, and after the sale it became clear that it was gold

This law may be made dependent on the dispute among the Acharonim regarding one who sold gold ore, when there was doubt whether gold could be extracted from it, and after the sale the seller learned that it was possible to extract gold from that earth, and he wished to retract, claiming that had he known of the possibility he would not have sold. We find several opinions among the Acharonim.

The Maharshdam (Responsa, Choshen Mishpat, siman 376) held that this is not a mistaken transaction, since he sold with this in mind. The Pnei Yehoshua in a responsum (Geonei Batra’ei, siman 19) held that the sale is void, because it can be compared to dice-playing, which involves rabbinic theft, as explained in the Shulchan Aruch (Choshen Mishpat, siman 370, se’if 2), since there is no firm resolve that he will profit, for it is impossible to know who will win. Therefore, here too there is no firm resolve to sell the earth if gold can be extracted from it. There are other views among the poskim, but this is not the place to elaborate.

One may distinguish between the case of selling a roof without knowing that there is TAMA and the case of selling earth that is discovered to be gold-bearing earth. In the case of earth, the sale was of ordinary earth, and if afterward it becomes gold, it turns out that something else was sold.

By contrast, in the case of one who sold a roof and there is uncertainty whether a TAMA 38 program can be implemented, even if in the future there will be a possibility to implement the program, the roof will not turn into something else. In particular, since this involves great effort and much trouble, it may be preferable for a person to sell the roof as it is for the amount for which it was sold rather than implement the program. Therefore, one can say that in this case he sold the roof even with the uncertainty, and they cannot retract. Seemingly, the law in this will depend on the discretion of the dayanim who judge that case.

Summary and practical recommendation

In light of what was brought in this article and in previous articles, there are several approaches regarding whether one can compel TAMA 38 when there are neighbors who object, and this depends on the discretion of the dayanim. There are also further reasons and grounds for objection, and within the short framework of these articles it is not possible to encompass the entire subject.

My practical recommendation is that before selling rights in the roof or in common property to a resident or a developer, or entering into any other transaction, one should consult an expert in order to examine the overall nature and advisability of the transaction and all related matters.

From Torat HaMishpat

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