Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshiot VaYechi-Shemot

14 Tevet 5769

January 10, 2009

Vol.18 No.16

Who is Religious - Part 1 of 1

by Rabbi Chaim Jachter

The Case

A number of observant Jews purchased apartments in a new Israeli neighborhood from a construction company that advertised that it was selling apartments in the area exclusively to observant Jews (“Datayim”). Shortly after the apartments had been purchased, it was discovered that many of the apartments had been purchased by people who did not behave like observant Jews. The men did not wear Kippot, the women dressed immodestly, the children were not sent to religious schools and the families did not fully observe Shabbat.

Since many Israelis wish to live in neighborhoods where the residents share their level of observance and ideology, the buyers sought to nullify the sale on the grounds of fraud (Mekach Ta’ut), as they claimed that they purchased the apartments because of the advertisement that sales would be only to observant Jews. The seller responded that all those who purchased the apartments represented themselves as observant and even brought a letter signed by a rabbi confirming that they were religious. It seems that the rabbis did not know these people particularly well, but simply recognized them from synagogue attendance on Shabbat.

The case was brought before Rav Eliyahu Schlesinger, the distinguished Rav of the Giloh neighborhood of Jerusalem for adjudication. Rav Schlesinger in turn consulted some of the most prominent Halachic authorities in Israel at the time (the early 1990’s) including Rav Chayim David Halevi, Rav Shmuel Wosner, Rav Yitzchak Zilberstein, Rav Natan Gestetner, Rav Shlomo Goren and Rav Zalman Nechemia Goldberg and presents their opinions in Techumin 18:169-183). Each of these Poskim offered their perspectives on this case, which hinged to a great extent on the question of the definition of an observant Jew. Rav Schlesinger observes that while the “Who is a Jew” issue (conversion controversies) has been hotly debated in many circles for decades, this dispute introduces the debate of “Who is Religious” (Dati).

Rav Chaim David Halevi

Rav Halevi agrees with Rav Schlesinger’s observation that the common definition of “Dati” is not self evident and is subject to considerable debate. He urges that this case be brought to a prominent Beit Din (Rabbinical court) for adjudication. The Beit Din will thoroughly investigate what people intend when they use the term “Dati”, as Lashon Bnei Adam, common perceptions and expressions determine this issue and not formal Halachic definitions (Rambam Hilchot Mechirah 26:8 and Shulchan Aruch Choshen Mishpat 42:15, 43:27 and 215:8). In this case the Beit Din determines what the sellers and buyers intended with the term “Dati”, by examining what people intend when they use the word “Dati”.

This is similar to the case in the Gemara (Bava Kama 27) where a determination needs to be made about people intend when they use the term “barrel” in a case where one paid for a Chavit (barrel) and was given a Kad (jar). The Gemara explains that the sale is valid if some people in that locale refer to a jar as a Chavit.

Rav Halevi urges that this Beit Din issue a public ruling on this matter to serve as a precedent to avoid such disputes in the future. He makes this recommendation since this issue will inevitably arise in other situations.

Rav Shmuel Wosner

Rav Wosner notes that even though the Halachic definition of an observant Jew is one who fully adheres to every aspect of Torah and rabbinic law, nonetheless one who attends shul once a week might be considered “Dati” in Lashon Bnei Adam, even if he violates Shabbat to a certain extent. Rav Wosner adds though, that if it was advertised that the apartments would be sold exclusively to “Shomrei Torah V’Hamitzvah” then the level of observance that could be expected is dramatically different than if the term Dati is used. I would add that such matters should be resolved contractually, by using a term that does not allow for ambiguity.

Rav Yitzchak Zilberstein

Rav Zilberstein concurs with Rav Halevi and Rav Wosner that this question is resolved by determining the Lashon Bnei Adam. His contribution to this discussion is that the Lashon Bnei Adam on this issue varies greatly from neighborhood to neighborhood. If one were to advertise in the Jerusalem neighborhood of Me’ah She’arim that he is selling only to “observant Jews” the intention is for families where the wife does not wear only a wig but rather a complete head covering with a hat on top. On the other hand, if the advertisement was in Tel Aviv’s Dizengoff Square, Dati is understood to mean a Sabbath observer. Rav Dr. Ronald Warburg, Din Torah coordinator for the Beth Din of America, notes that the Shulchan Aruch C.M. 21:8 and 218:19 teaches that Lashon Bnei Adam varies from place to place.

Rav Zilberstein also notes that this matter can be resolved by seeing if the apartments are outfitted for scrupulously observant Jews. For example, if the apartments do not have a porch suitable for a proper Sukkah it is obvious that the seller did not intend to sell the apartments to only fully observant Jews (common practice in Israel is to have apartments intended for sale to observant Jews outfitted with a porch where a valid Sukkah can be erected). Since the purchasers could have arrived at a conclusion simply from observing the apartments, they would have no claim against the seller.

Rav Zilberstein concludes that where the matter is in doubt, no money can be extracted from either side. This is an application of the most fundamental rule of dispute resolution “Hamotzi Mei’chavei’roh Alav Hara’ayah”, the burden of proof rests upon the side which seeks to extract the money (Bava Kama 46a). This point underscores the need to resolve such matters in advance with careful crafting of the contract.

Rav Natan Gestetner and Rav Zalman Nechemia Goldberg

Rav Gestetner notes that a Halachicly valid stipulation (T’nai) was not formally made stating that the sale is valid only if the neighboring apartments are sold to observant Jews. Nonetheless, Rav Gestetner claims that the situation is analogous to the following case in the Shulchan Aruch (C.M. 233:1) – one who agrees to sell white wheat and sells red wheat instead, the sale is invalid and either buyer or seller may withdraw from the transaction.

Rav Gestetner stresses the importance of living in a neighborhood of observant Jews, citing the Mishnah (Avot 1:7) which states “Distance oneself from a bad neighbor” and the Gemara (Ketubot 72a) “One cannot live together with a snake”. He also cites the Rambam (Hilchot Dei’ot 6:1) who writes at some length about how one is positively impacted by his neighbors and community and that one should be sure to surround himself with positive role models. Accordingly, he concludes, a neighborhood of observant Jews is an entirely different product than a neighborhood that includes those who do not uphold the Torah.

Rav Gestener rules that if one advertises apartments to be sold only to “Dati” individuals then people purchase them with the intention that they will be surrounded by positive role models. One could question this ruling, however, as some observant Jews feel that children are better prepared to confront the realities of contemporary society when they are raised with some non-observant neighbors instead of in a religious cocoon.

Thus, it is not a foregone conclusion that all observant individuals would not agree to live among people who are at best marginally observant of Jewish law (though this assumption might hold true in regards to certain segments of the Orthodox community). Thus, in the absence of a properly formulated T’nai, the purchase cannot be voided as noted by Rav Zalman Nechemia Goldberg.

Rav Shlomo Goren

Rav Goren agrees that the sale cannot be voided since a proper T’nai was not formulated. Rav Goren adds that even were such a condition stipulated the sale would not necessarily be voided. Teshuvot Rabi Akiva Eiger (number 1:129, cited by Pitchei Teshuvah C.M. 241:11) rules that a condition cannot be invalidated if the condition is ambiguous and it was fulfilled in its most minimum sense.

Accordingly, Rav Goren believes that since the term Dati is not a well-defined term, the sale cannot be nullified on the basis of the sub par level of observance of some of the people who purchased apartments in that neighborhood. He argues that since some people regard one as “Dati” even if the husband does not don a Yarmulke and the wife’s clothing is somewhat immodest, the seller can claim he fulfilled the condition in a minimal fashion and thus the sale cannot be canceled.

We should note that Rav Goren concludes that the buyer has a right to be angry at the seller who did not act at the highest levels of integrity and morality (see Mishnah Bava Metzia 6:1). Practically speaking such conduct by a seller is ill-advised as he will not succeed in building a good reputation if he does not deliver the product he promised in the fullest sense (see Mishnah Bava Metzia 7:5 where Beit Din advises someone that even though the Halacha sides with him in his dispute, he damages his marketability due to his less than stellar conduct).

Conclusion

Resolving monetary disputes is a daunting challenge. Rav Ben Zion Uzziel (Teshuvot Mishpitei Uzziel 3:1) urges Dayyanim (rabbinic judges) to engage in “deep thought and seek much advice”, following the advice of Mishlei 11:14 “salvation comes with much advice”. The consensus view among the Poskim consulted by Rav Schlesinger is that the sale in most cases cannot be voided. However, it behooves both buyers and sellers to carefully clarify the product that is being offered and expected, in order to avoid scenarios such as ours which in the long run harm the interests of both buyer and seller.