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This week's issue has been dedicated by David Wolf, in thanks to G-d on the first birthday of his son, Meyer Leib Yehoshua (Kevin Mathew) -- "Meyer Leib" after David's grandfather grandfather; "Yehoshua" after Yehoshua Ben Nun, who led the Jewish people in the conquest of Yericho, may it soon be returned to Jewish hands!

Parshat Behar 5755

THEN HE IS TO BREAK DOWN THE DOOR...

2 Ways of viewing the redemption of a house in a walled city.

If a man sells a house of residence in a walled city, its redemption period shall be for a full year. If it is not redeemed [by the seller] by the end of the year, the house in the walled city shall become a permanent possession of the one who bought it, for all his generations. It shall not be subject to release in the Yovel year.
(Vayikra 25:29-30)
There is a general rule that any property that is sold reverts to its original owner in the Yovel [= Jubilee] year. However, the Torah makes an exception for houses in walled cities. Houses in walled cities may be redeemed by their original owner for up to one year. During that year, the buyer of the house *must* agree to return the house to the seller, should the seller offer to refund the money. If, however, the seller does not redeem his house within the first year, he loses it forever. The house does not even return to him in the Yovel year.

This forced restitution of the purchased property within the first year may be viewed in two ways. On the one hand, we might say that the Torah enforces an implicit stipulation in the sale of a house in a walled city, that if the seller refunds the money, the sale is annulled *retroactively*. If so, the buyer's money which had been in the possession of the seller for several days or months is considered, in retrospect, as a loan.

The other way of looking at this Halacha is that the original sale is never annulled. Rather, the house is *repurchased* by the original owner when he refunds the money to the buyer. The original sale was unconditionally valid, but the Torah imposes upon the buyer an obligation to make a *new* sale upon being reimbursed by the original owner.

The two sides of this debate are taken up by two of the most well-known commentators on the Choshen Mishpat section of the Shulchan Aruch -- the Ketzot HaChoshen and the Netivot HaMishpat (both of eighteenth century Poland). In C.M. 55:1, the Netivot assumes the first of the two alternatives, while the Ketzot prefers the second side of the argument. (A careful survey of the topic reveals that among the earlier authorities [Rashi and Tosefot in Erchin 31b, Rashba in Gittin 75a] the former view is prevalent. However, there is at least one early source for the latter view as well, namely, Rabbeinu Gershom [tenth century Germany] in his commentary to Erchin 31b -- MK.)

R. Yosef Rosen of Dvinsk, commonly known by his city of birth as "the Rogatchover Gaon" (Russia, d. 1936), discusses this issue in his Tzofnat Pa'aneach, and opts for the second view. According to this opinion, he adds, the original owner, when he gives money to the buyer to buy back his house, is actually performing two acts. Firstly, he is fulfilling the condition that the Torah stipulates in order for a person to redeem his property -- namely, to return the money to the hands of the buyer. Secondly, he is performing a bona fide Kinyan [=act of acquisition] which officially transfers title of the house to him. (In order for any item to change hands, a Kinyan must be performed. The 4 Kinyanim applicable to acquiring real estate are: payment of money; handing over of a bill of sale; making an improvement or change in the state of the property [Chazakah]; and symbolic barter [the "exchange" of an object, usually a handkerchief, for the property]. In this case, payment of money is being used as the Kinyan.) If this is the case, says the Rogatchover, we can now offer an explanation to a difficult passage in a Mishnah in Erchin.

II

"Break down the door"

At first the buyer of the house (if he did not want to be forced into selling it back) would hide from the original owner on the last day of the year of purchase (so that the original owner would not be able to give him back the money, in case he hadn't done so yet) in order to ensure that the house become permanently his. Then Hillel made an enactment that the money could be deposited in a certain office on the Temple grounds, where it was available to the purchaser to retrieve whenever he wanted it. Thereafter the original owner was to "break down the door and enter the house."
(Mishna Erchin 31b)
Hillel made his enactment as a way of forcing the purchaser to "receive" his money even against his will. The money would be deposited by the original owner in a certain place, and it would thereupon be considered the money of the uncooperative buyer. But what is the point of "breaking down the door of the house?" If the Mishnah had said "He *may* thereafter reclaim possession of his house, by force if necessary" - then we would have understood the intent. But the way the Mishnah is in fact worded, it sounds as if the "breaking down of the door" is somehow a part of Hillel's enactment. It seems to say that in order to complete the terms of the enactment, the original owner had to break down the door of his house. What would be the logic of such a strange requirement?

The Rogatchover explains this enigmatic statement of the Mishnah based on what was stated above, as follows:

In Gittin 75a there is a discussion as to whether giving an object to a person against his will constitutes a valid act of "giving." For instance, if a man says to his wife, "I consent to divorce you, but only on the condition that you give me 200 shekels," and he subsequently refuses to accept the payment in order to invalidate the divorce, may she give the money to him against his will? Is this considered a valid fulfillment of the condition?

The Rashba (Spain, 13th century) asserts that even if we were to decide that payment by coercion is acceptable, it will only be acceptable as an act of *giving*, but it will not be as though the other party has *received* what was given. That is to say, coercion will only help when it is not necessary for the recipient to take acquisition of what has been given. Nobody can be forced to *receive* an object (i.e., to acquire it through a Kinyan) against his will, so the recipient -- in our case, the divorcing husband -- will not acquire the money that has been thrust upon him. Nevertheless, it can be said that the woman has "given" him the money, and fulfilled the condition, since making something *available* for another person to take can also be called "giving".

In the case of the divorce, the Rashba explains, the condition was for the woman "to give" 200 shekels to the man. To fulfill this condition, it suffices for her to make the money *available* to her husband. Even though the money does not become the property of the husband, i.e. he did not "receive" it, nevertheless, by making it available to him, the woman has "given" it to him.

If so, we may conclude that after Hillel's enactment to pay the buyer of the house against his will (which the Gemara in Gittin ibid. compares to the divorce case), the money is considered as having been "given" by the original owner when he throws it into the specially appointed office and makes it available to the one to whom he is returning it. However, the recipient (i.e., the one who bought the house) does not own that money as long as he does not wish to *receive* it.

III

Payment to an unwilling recipient

The Rogatchover follows this line of reasoning to its logical conclusion. According to the second opinion quoted above (that of the Ketzot, which the Rogatchover also prefers) we explained that the original sale of the house is never annulled. Therefore, in order to receive his house back, the original owner must (a) return the money that he received from the buyer and (b) make the house his property once again through a new, bona fide, act of Kinyan.

Putting the money in the designated office against the will of the buyer may suffice for "giving" back the money to the buyer (a), since giving forcefully is also classified as "giving". However, based on the Rashba's premise, the money does not come into the possession of the purchaser of the house. Therefore the payment cannot constitute a proper Kinyan of "payment of money," to allow the original owner to regain acquisition of the property (b). In order for this Kinyan to work, the money must be *received* by the seller, not just made available to him. Only then, when one party receives the money, the other party receives the land in return.

This being so, in order for the original owner to get his house back, he must still perform a legal act of acquisition on that property before the year's end. Until he performs that act of Kinyan, the house will not become legally his again. The Kinyanim of "payment," "barter" and "transferal of deed" are obviously not operable in this case, where the other party in the sale is unwilling to cooperate. The only option left is for the original owner to make a Kinyan of Chazakah on his house -- by making an improvement or change in the state of the property. The Mishnah (Bava Batra 42a) describes the classical Chazakah as "locking up a door or breaking down a locked door."

We can now better understand the Mishna in Erchin. The Mishna states that the process by which the original owner gets his house back is not complete with just depositing the money -- he must also "break down the door" to his house. He must break down the door in order to make a Kinyan of Chazakah on the house. Only by making a formal act of acquisition (Kinyan) before the year's end, will the house return to his possession!

(Tzofnat Pa'aneach, in Kuntress Hashlama p. 4 -- see also Ishim Veshittot, Rogatchover, 2:15. A similar explanation of the Mishnah in Erchin is attributed to the Brisker Rav by R. Shmuel Rozovsky in his Shiurim on Ketubot 3a.)


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