Submitted by the Bais Hora’ah
Q. Last week, we dealt with the case of a person who inadvertently extended his house approximately one foot over the boundary into his neighbor’s property. We found that according to many poskim, when it comes to real estate theft, there is no takanas hashavim enabling the thief to repay the monetary value instead of the actual property, and the homeowner would therefore be required to destroy the extension and return the property.
According to this ruling, however, he would incur a major financial loss by destroying the extension, while his neighbor’s loss in selling him a small portion of his unbuilt property would be negligible. Does this imbalance constitute sufficient grounds to force the neighbor to sell him the property and allow him to keep his extension intact?
A. There are poskim who raise the possibility that when the expansion into the neighbor’s property was unintentional, we would consider forcing the neighbor to sell him the land.
This ruling is based on a dispute between Tanna’im (Bava Kamma 114a). According to Rav Yishmael the son of Rav Yochanan ben Berokah, a person is required to incur a minor financial loss in order to save another person from a major loss. For instance, if a beekeeper’s bees escaped and settled on a branch of another person’s tree, we allow the beekeeper to cut off that branch to save his entire swarm of bees, and pay the tree owner for the branch (Choshen Mishpat 274:1). Similarly, if a person’s barrel of honey broke, we require the owner of a barrel of wine, which is less valuable than honey, to pour out his wine and place his empty barrel under the leaky honey barrel; he would then be reimbursed by the owner of the honey for the value of the wine (ibid. 364:5). Since he is not incurring a major financial loss, Chazal required him to forfeit his own object to save a fellow Jew from major financial loss, as a form of hashavas aveidah (Sma ibid. 17).
The Chachamim argue with Rav Yishmael, however, maintaining that the owner of the tree or the wine can say that he prefers his own items over their monetary value.
The Poskim throughout the generations disputed how we rule in such cases, and both sides were cited in Shulchan Aruch (264:5 and 274:1; see Pischei Teshuvah 272:2). Some poskim write that a yerei Shomayim should follow Rav Yishmael’s ruling and forfeit his item in order to save his friend from a major financial loss (Shulchan Aruch Harav, Dinei Sh’eilah 6).
In our case, since the person who extended his house would incur a major financial loss if he were required to destroy the extension, and his neighbor doesn’t lose nearly as much by giving up a small portion of his unbuilt property, some poskim write that since this was done unintentionally, we might require the neighbor to sell him the land for that extension (Shaar Mishpat 360:1). [In addition, Shu”t Maharsham (3:23) writes that the person who extended is considered to be in possession of the land (muchzak), and he can therefore declare “kim li,” which entitles a defendant to claim that he subscribes to the opinion that exonerates him and that the plaintiff bears the burden of proof that the halachah follows the other opinion.]
Other poskim reject the comparison to the machlokes Tannaim, because we only find this halachah applied to items that do not last forever, such as a branch of a tree or a barrel of wine. With regard to real estate, which a person is loath to sell, we cannot apply this takanah to force a person to incur a minor loss in order to save another person from a major loss. [As a rule, if we are uncertain whether Chazal included a certain case in a takanah that they instituted, we revert to Torah law, which, in this case, requires the builder to destroy his extension; (Erech Shai 360:1; Shu”t Ohr Samei’ach 2:11; see Mishpat Shalom 175:59).]
Returning to the original question, considering that it is likely that beis din would require the homeowner to destroy his extension, it would be wise to try to negotiate a settlement that will satisfy his neighbor rather than enter a din Torah.