Talmud Bavli
Talmud Bavli

Responsa for Bava Metzia 215:15

זבין ליה גריוא דארעא במיצעא נכסיה חזינן אי עידית היא אי זיבורית היא זביניה זביני

Samuel said: He who takes possession of the wharfage of a river is an impudent person, but cannot be [legally] removed.<span class="x" onmousemove="('comment',' As stated above, p. 425, under Persian law, he who paid the land tax on a plot of land was entitled to it. A large clear space on the river bank was left for the purpose of unloading. It would appear that originally no one had a particular claim to it, and the revenue suffered accordingly. Hence, if one paid the land tax and seized it, he could not be legally removed; nevertheless, since this would cause considerable public inconvenience, he was stigmatised as an impudent man, lacking in civic responsibility. ');"><sup>13</sup></span> But nowadays that the Persian authorities write [in the warrant of ownership], 'Possess it [sc. the field on the river bank] as far as the depth of water reaching up to the horse's neck', he is removed.<span class="x" onmousemove="('comment',' Though the owners fence off their fields at some distance from the water's edge, the land actually belongs to them, and therefore none can legally seize it. ');"><sup>14</sup></span> Rab Judah said in Rab's name: If one takes possession<span class="x" onmousemove="('comment',' By paying the land tax thereon. ');"><sup>15</sup></span> [of an estate lying] between [the fields belonging to] brothers or partners, he is an impudent man, yet cannot be removed. R. Nahman said: He can even be removed too; but if it is only on account of the right of pre-emption, he cannot be evicted.<span class="x" onmousemove="('comment',' I.e., if the two fields on either side do not belong to brothers or partners, yet the owners allege that they had a prior right to pay the tax and take the land, and had intended doing so, in accordance with the right of pre-emption (v. p. 396, n. 6), their plea is unavailing. ');"><sup>16</sup></span> The Nehardeans said: He is removed even on the score of the right of pre-emption, for it is written, <i>And thou shalt do that which is right and good in the sight of the Lord</i>.<span class="x" onmousemove="('comment',' Deut. VI, 18. This is regarded as an exhortation to the purchaser: 'Why buy a field just here, where it is more useful to its neighbour than another field not adjacent to his, when you can as easily buy a similar field elsewhere, seeing that it makes no difference to you?' ');"><sup>17</sup></span> What if one came to take counsel of him [sc. the neighbour who enjoys the right of pre-emption] and asked, 'Shall I go and buy it?' and he replied, 'Go and buy it': is formal acquisition from him necessary,<span class="x" onmousemove="('comment',' [The performance of a kinyan confirming the surrender of the abutting neighbour's right of pre-emption.] ');"><sup>18</sup></span> or not? — Rabina<span class="x" onmousemove="('comment',' Alfasi reads: R. Nahman. ');"><sup>19</sup></span> ruled: No formal acquisition is necessary; the Nehardeans maintained: It is. And the law is that a formal acquisition is needed.<span class="x" onmousemove="('comment',' Otherwise the neighbouring estate owner can say, 'I merely stood aside whilst you established its price, as I knew that I would be charged more, being particularly anxious to obtain it.' ');"><sup>20</sup></span> Now that you say that a formal acquisition is necessary, — if he did not acquire it of him [and bought the field], it advances or falls in his [the abutting neighbour's] ownership.<span class="x" onmousemove="('comment',' I.e., the purchase is legally invalid, the abutting neighbour retaining his option on it. Therefore if it appreciates after the purchase, he can insist on taking it over from the vendee at its value at the time of purchase, and the profit of the advance is his. Contrariwise, if it loses in value, he must pay the vendee its full original value. ');"><sup>21</sup></span> Now, if he bought it for a hundred [<i>zuz</i>], whereas it is worth two hundred, we see: if he [the original vendor] would have sold it to any one at a reduced figure, he [the abutting neighbour] pays him [the vendee] a hundred [<i>zuz</i>] and takes it. But if not [and it was a special favour to the vendee], he must pay him two hundred and only then take it. But if he bought it for two hundred, its value being only one hundred, — it was [at first] thought that he [the abutting neighbour] can say to him, 'I sent you for my benefit, not for my hurt.'<span class="x" onmousemove="('comment',' For the vendee has in fact involuntarily become the neighbour's agent for purchase. Hence the latter can repudiate his act and insist on receiving it at its market value. ');"><sup>22</sup></span> But Mar Kashisha, the son of R. Hisda,<span class="x" onmousemove="('comment',' V. p. 388, n. 4. ');"><sup>23</sup></span> said to R. Ashi: Thus did the Nehardeans say in R. Nahman's name: There is no law of fraudulent purchase in respect to real estate.<span class="x" onmousemove="('comment',' Hence the neighbour must render the price paid by the vendee. ');"><sup>24</sup></span> If one sold a <i>griwa</i><span class="x" onmousemove="('comment',' V. Glos. ');"><sup>25</sup></span> of land in the middle of his estate, we see: if it is of the choicest or of the most inferior quality, the sale is valid;

Teshuvot Maharam

Q. A sold his ground, which bordered on B's property, to C for a sum of money plus C's share in a piece of ground C held in partnership with D in another part of town. After the sale was completed and the title conveyed, B pressed his rights as an abutter. Since Maimonides rules that the law of preemption does not apply to the case where a person exchanges his immovables for the immovables of another, C was advised to persuade A to refuse to accept from B, in payment of A's ground, anything but the particular piece of ground A was to receive from C. Accordingly A claimed that C's piece of ground was very precious to him and that he valued it like the "estate of Bar Marion" (B.B. 12b). B, therefore, bought from D his share of the particular ground he held in partnership with C, and offered it to A in lieu of C's share of the same ground. C, however, objected to D's sale claiming that upon the voiding of his transaction with A he would return to his former status as D's partner, and, having the right of preemption on D's share, he would buy such share leaving nothing to A. A and C employed many other tricks and artifices in order to void B's right of preemption.
A. Since C bought A's ground and gave away his own ground in partial payment thereof, he no longer owns the latter ground. Since a person who buys real property desired by an abutter, merely acts as the agent of such abutter (B.B. 108a), C must deliver to B the ground he bought from A, receiving in exchange the ground B bought from D plus a refund of his money. Were B unable to acquire such ground from D, he would have repaid C with money for the ground C gave to A; the value of such ground would have been determined by experts and not by C. C would not have been able to claim that his ground was very precious to him having for him the value of the "estate of Bar Marion", for such claim is valid only when a person is seeking to take away the property of another (in exchange of his own) against the will of the latter who may plead that his property is very precious to him. But in our case C has sold his property to A, and is only entitled to its market price. Moreover, even if the aforementioned sale were not concluded as yet, and an understanding merely existed between A and C that C convey his ground to A on condition that the conveyance of A's ground be without any interference on the part of the abutters, A could not have insisted on exchanging his ground for ground exactly similar to that of C. A could not have attached special importance to C's ground as having the value for him of the "estate of Bar Marion", for the reason already stated. Therefore, B would have been able to pay A with other ground, located in the same town, of equal value as that of C. Many persons have the erroneous notion that the preemptive right of an abutter is void whenever an exchange or real property is involved. Were this true, the parties to a sale of immovables would always add a small piece of ground to the purchasing price in order to place the transaction in the category of exchange of real property, thus turning into a hollow mockery the ordinance of the Rabbis who created the law of preemption for humane reasons. Therefore, whenever we suspect that the circumstances of a sale of real property were specially arranged in order to circumvent the law of preemption, we sustain the preemptive right of the abutter.
SOURCES: Cr. 193; Am II, 199, 200.
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Teshuvot Maharam

Q. A sold his ground, which bordered on B's property, to C for a sum of money plus C's share in a piece of ground C held in partnership with D in another part of town. After the sale was completed and the title conveyed, B pressed his rights as an abutter. Since Maimonides rules that the law of preemption does not apply to the case where a person exchanges his immovables for the immovables of another, C was advised to persuade A to refuse to accept from B, in payment of A's ground, anything but the particular piece of ground A was to receive from C. Accordingly A claimed that C's piece of ground was very precious to him and that he valued it like the "estate of Bar Marion" (B.B. 12b). B, therefore, bought from D his share of the particular ground he held in partnership with C, and offered it to A in lieu of C's share of the same ground. C, however, objected to D's sale claiming that upon the voiding of his transaction with A he would return to his former status as D's partner, and, having the right of preemption on D's share, he would buy such share leaving nothing to A. A and C employed many other tricks and artifices in order to void B's right of preemption.
A. Since C bought A's ground and gave away his own ground in partial payment thereof, he no longer owns the latter ground. Since a person who buys real property desired by an abutter, merely acts as the agent of such abutter (B.B. 108a), C must deliver to B the ground he bought from A, receiving in exchange the ground B bought from D plus a refund of his money. Were B unable to acquire such ground from D, he would have repaid C with money for the ground C gave to A; the value of such ground would have been determined by experts and not by C. C would not have been able to claim that his ground was very precious to him having for him the value of the "estate of Bar Marion", for such claim is valid only when a person is seeking to take away the property of another (in exchange of his own) against the will of the latter who may plead that his property is very precious to him. But in our case C has sold his property to A, and is only entitled to its market price. Moreover, even if the aforementioned sale were not concluded as yet, and an understanding merely existed between A and C that C convey his ground to A on condition that the conveyance of A's ground be without any interference on the part of the abutters, A could not have insisted on exchanging his ground for ground exactly similar to that of C. A could not have attached special importance to C's ground as having the value for him of the "estate of Bar Marion", for the reason already stated. Therefore, B would have been able to pay A with other ground, located in the same town, of equal value as that of C. Many persons have the erroneous notion that the preemptive right of an abutter is void whenever an exchange or real property is involved. Were this true, the parties to a sale of immovables would always add a small piece of ground to the purchasing price in order to place the transaction in the category of exchange of real property, thus turning into a hollow mockery the ordinance of the Rabbis who created the law of preemption for humane reasons. Therefore, whenever we suspect that the circumstances of a sale of real property were specially arranged in order to circumvent the law of preemption, we sustain the preemptive right of the abutter.
SOURCES: Cr. 193; Am II, 199, 200.
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