Responsa על בבא בתרא 108:2
Teshuvot Maharam
Q. B bought from a Gentile woman a house bordering on A's property. B agreed that the woman could remain in the house till the month of Heshvan (October). A and C claim that they were negotiating to buy the house before B appeared on the scene; that A has a partnership in the house since the beams of his house project into the wall of the Gentile's house; that the Gentile owed money to A; that B promised them not to buy the house; that the arbitrators reported to A and C, B's statement to the effect that A and C need not be concerned, and could rely on his word as a Jew that he would not buy the house; that the Gentile gave A and C the keys to her house, and that they opened it, measured the size and noted the arrangement of the rooms, the exits, and the entrances, and locked it, before B bought the house. They, therefore, demand that B transfer the house to them. B avers that he never promised A and C not to buy the house; and that he had negotiated to buy the house long before they did. The Gentile woman claims that A inserted his beams into her wall illegally.
A. A and C cannot force B to transfer the house to them, for the following reasons: a) B denies having promised A and C not to buy the house; b) if B did make such a promise to A and C, and then broke it he might be called Rasha (wicked) or Abaryana (renegade), but we can not force him to transfer the house to A and C; therefore, no useful purpose will be served by imposing an oath on B regarding such promise; c) although locking a house is considered a valid act of possession, and one may gain title to the property of a Gentile by taking possession thereof (Bechorot 13a), this rule applies only when such an act is accompanied by proper intention by both parties. However, before the two parties agree on the terms of the sale no such intention is possible; therefore, A's locking of the Gentile's house was of no consequence; d) the fact that the Gentile owed money to A does not vest in him the priority rights of an abutter, for, only a creditor who has a mortgage on a house, lives therein, and has a lease thereon so that he cannot be made to move before the year is up has the right of an abutter. Moreover, since A's property borders on that of the Gentile, B may assert: "I have driven away a lion from your neighborhood", and such assertion annuls the priority rights A could have claimed as an abutter, as a creditor, or as a partner; e) B's statement to the arbitrators constituted neither an oath nor a vow, but a mere assurance. Even if we agree with A, who has construed that statement to mean an oath, B may not be forced to transfer his house to A merely because he disregarded his oath. Thus A is not entitled to indemnity. Indeed, B should be fined for his sinful act (breaking his oath), but we do not have the authority to impose penalties. However, you, my teacher, and your community, if you find that a disgraceful breach of conduct was committed, you may impose a proper fine upon B, the money to go to charity. Finally, half of B's wall, upon which the ends of A's beams are resting, belongs to A; for, the presence of such beams is ample proof that the wall was held in partnership by the two neighbors.
A. A and C cannot force B to transfer the house to them, for the following reasons: a) B denies having promised A and C not to buy the house; b) if B did make such a promise to A and C, and then broke it he might be called Rasha (wicked) or Abaryana (renegade), but we can not force him to transfer the house to A and C; therefore, no useful purpose will be served by imposing an oath on B regarding such promise; c) although locking a house is considered a valid act of possession, and one may gain title to the property of a Gentile by taking possession thereof (Bechorot 13a), this rule applies only when such an act is accompanied by proper intention by both parties. However, before the two parties agree on the terms of the sale no such intention is possible; therefore, A's locking of the Gentile's house was of no consequence; d) the fact that the Gentile owed money to A does not vest in him the priority rights of an abutter, for, only a creditor who has a mortgage on a house, lives therein, and has a lease thereon so that he cannot be made to move before the year is up has the right of an abutter. Moreover, since A's property borders on that of the Gentile, B may assert: "I have driven away a lion from your neighborhood", and such assertion annuls the priority rights A could have claimed as an abutter, as a creditor, or as a partner; e) B's statement to the arbitrators constituted neither an oath nor a vow, but a mere assurance. Even if we agree with A, who has construed that statement to mean an oath, B may not be forced to transfer his house to A merely because he disregarded his oath. Thus A is not entitled to indemnity. Indeed, B should be fined for his sinful act (breaking his oath), but we do not have the authority to impose penalties. However, you, my teacher, and your community, if you find that a disgraceful breach of conduct was committed, you may impose a proper fine upon B, the money to go to charity. Finally, half of B's wall, upon which the ends of A's beams are resting, belongs to A; for, the presence of such beams is ample proof that the wall was held in partnership by the two neighbors.
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