Harping on Divided Real Estate

Tavi had a strong passion for musical instruments, and when he saw Pafi’s harp, he was determined to acquire it. He resorted to extreme measures and placed Pafi in a tree, refusing to let him down until he agreed to sell his cherished harp. The events are clear, and the halachic issue should be relatively straightforward. The coerced sale is deemed invalid. According to Rav Bibi, this is indeed the correct stance. However, somewhat unexpectedly, Rav Huna holds a different view, and the halacha follows Rav Huna.

The sale is considered entirely valid based on Rav Huna’s reasoning that despite Pafi’s initial reluctance to sell the harp, he eventually consented when payment was received. Nonetheless, Rav Huna acknowledges that if Tavi coerced Pafi into giving him the harp as a gift, the gift would be invalidated.

The Gemara (Bava Basra 48) relates this two additional halachos. If a stubborn husband is physically compelled by a rabbinical court to grant a get (Jewish divorce), the get is considered valid. Similarly, a person can be forced to fulfill his commitment to bring a sacrifice. Tosfos notes that both situations are somewhat different from the scenario mentioned earlier. Rav Huna’s ruling that the sale was valid was based on the seller receiving money in return. However, in the case of the recalcitrant husband and the person coerced to bring a sacrifice, what did they receive in return? Tosfos concludes that it must be the fulfillment of a mitzvah for the husband to divorce his wife, which can be considered as a form of payment. Beis Din would only force a husband to divorce his wife if it is a mitzvah to do so. Similarly, the person offering the sacrifice is benefiting by fulfilling his obligation, as he is saving himself from being considered a sinner. This is equivalent to receiving payment.

This halacha raises a very serious question: What should a person who knows he will be forced to sell an item do to extricate himself from this predicament? The Bais HaVaad Halacha Center of Lakewood had a similar scenario before them for a ruling. Two families entered into a real estate partnership. The venture was very successful and lasted a number of years. A disagreement arose as to how the venture should proceed moving forward. One family wanted the venture to maximize payouts. They needed the money to support their children learning in kollel. The other family wanted any excess funds to be reinvested in the venture. The problem was that the title of all the real estate was in this latter family’s name. Knowing they had the upper hand, they proposed to dissolve the partnership at a discounted valuation. They said that if the family of the kollel couples disagrees, they will drag the matter through the secular courts. It could take years for a resolution.

The blackmailed family, well-versed in Torah learning, utilized the halachic technique of shtar modaa to their advantage. This strategic use of the modaa technique allowed them to agree to the reduced rate under duress and protest the issue in Beis Din at a later point. They simply stated their protest in front of witnesses. The witnesses drew up a document recording the protest and signed it. This use of the shtar modaa technique, designed precisely for such situations, demonstrates the family’s deep understanding of halachic strategies.

However, there was one major issue. The witnesses did not know firsthand what type of duress the blackmailed family was under. They had to rely on their say so. This is a seemingly fatal flaw. The Gemara states (40b), “The Sages of Neharde’a say: Any preemptive declaration (modaa) that does not have written in it the formulation: ‘We are personally aware of so-and-so’s duress’ is not a valid preemptive declaration.” This statement from the Gemara highlights the importance of firsthand knowledge in a modaa, which was lacking in this situation.

However, the Rashba explains that the Gemara simply means the modaa is not valid on its own. One can write the modaa, then leave it up to Beis Din to ascertain whether the supposed victim was under duress. That would be perfect in this situation. Beis Din will investigate the issue later and discover the truth. Still, Rabbeinu Yona disagrees and is of the opinion that such a modaa should not be written at all. However, some suggest that if the modaa is perfectly clear that the witnesses do not have firsthand knowledge, then the modaa may be written. In any event, the blackmailed family had the Rema’s ruling in their favor. The Rema rules that regardless of which opinion one follows, the Rashba or Rabbeinu Yona, once the modaa is written, it is valid b’dieved-post facto.

Indeed, the strategy proved to be effective. Following the consent to the unfair division, the distressed family called upon the other family to appear before the rabbinical court. They provided the written acknowledgment of the protest drafted by the witnesses. The rabbinical court determined that the forced division was invalid. (This case was serialized in Ami, with the psak appearing in Issue 679.)