Bet Din CEASE AND DESIST
Rabbi Max Sutton,
Rosh Bet Din Aram Soba, Jerusalem, Israel
The Case
An affluent Jewish congregation in the Tri-State area entered into a contractual agreement with Harold to construct a community center in the heart of their neighborhood. The edifice was to include a synagogue, social hall, mikveh, and sports arena, and Harold hired out subcontractors for each of the different features of the project. The mikveh complex was subcontracted to Maurice, who was entrusted with the project based on his impressive résumé. But after the mikveh was completed, a bitter monetary dispute raged between Harold and Maurice with regard to the total cost of the project. The two appeared in Bet Din to resolve the complicated matter, in which Maurice claimed he was owed a substantial amount of money and thus requested a “cease and desist” order, preventing use of the mikveh by the public until he was paid in full. He pointed out that the mikveh was built using his raw material and his workers, and until he received the full payment, it should be forbidden to use. Maurice further noted that forbidding the use of the mikveh could also be beneficial to Harold in giving him leverage to recoup some of the additional expenses he had incurred from the congregation which hired him. Additionally, he claimed that since the local neighborhood maintained an operating mikveh in the area, preventing use of the new mikveh would not prevent people from observing this important mitzvah. Harold responded that while it is likely that he owed Maurice a minimal amount, he was by no means willing to make any further payments until their dispute was resolved. In addition, Harold felt it would be preposterous to punish the congregation until he makes whatever payment is required, given the small amount entailed. How should the Bet Din rule? Does Maurice have a valid claim? Should the Bet Din prevent the opening of the mikveh until the matter is resolved?
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COMMUNITY MAGAZINE
photo by: Abraham Amzalak
FROM THE FILES OF THE
Torah Law According to the ruling of the Shulhan Aruch, a craftsman who receives raw material for labor is not viewed as the rightful owner of the developed product. Although the craftsman developed and enhanced the raw material submitted to him, nevertheless, he is not deemed the product’s legal owner. If, however, a craftsman supplies the raw material for a product that he subsequently develops, he is considered the product’s owner. Since his time and money was invested, he is the legal owner and is entitled to dictate and control the status of the product. (There is one opinion that a craftsman maintains the status of an employee even if he supplies the raw material, but the consensus among the halachic authorities is to rule as aforementioned.) This ruling applies in instances in which the craftsman or contractor performed services for his client without first receiving monetary compensation. If, however, the client prepaid for the work performed, the money extended is viewed as payment for the cost of the raw material, thereby making the client the official titleholder of the project. As the property owner, all major considerations with regard to usage, occupancy and the like are to be regulated by his order. This applies even if the prepaid sum covers only the cost of the raw materials and not the cost of labor. Since Endnotes:
Shulhan Aruch Hoshen Mishpat 306:1, Ibid Shach;
the client paid for the material, the contractor is viewed as an employee who is simply owed wages for his services. According to the Shulhan Aruch, shareholders in a property cannot prohibit entry onto the premises from one another. Since they had invested together, each have the legal right of entry, and until proven otherwise, each may equally share and benefit from the property. Likewise, if one partner has the property deed in his name, along with a certificate of occupancy enabling him legal entry, the other investing partner may not prohibit entry, even if the other partner has a valid claim. As titleholder, one maintains legal possession of the property and is thus entitled to occupy it until the claims against him are validated by a Bet Din. By Torah law, in instances in which a dispute occurs with regard to public property, a Bet Din must be very deliberate and cautious before preventing the public from occupying the grounds. Although the legal position of the public is by no means favored over that of a private individual, nevertheless, a Bet Din will refrain from issuing a cease and desist order against a public building unless clear evidence is submitted to validate the claim. Without hearing the case, and without a formal lien on the property, a Bet Din is likely to reject a cease and desist order.
Rabbi Akiva Eiger, Hoshen Mishpat 339; Ketzot Hahoshen 339:3; Netivot Hamishpat 333:15;
Hazon Ish, Baba Kama 23:35; Shulhan Aruch Yoreh Deah 226:1; Kuntras Hasefekot 1:6; Rama, Hoshen Mishpat 4:1.
Verdict: PROCEED AND PERMIT The Bet Din rejected Maurice’s request for a cease and desist order to prevent public use of the mikveh until his dispute with Harold is resolved. Although Maurice used his raw materials and workers to construct the edifice, upon inquiry, he acknowledged that he received numerous payments which clearly covered the costs of the raw material. Hence, as discussed, Maurice maintains the status of an employee, and is not entitled to dictate the conditions of occupancy of the property. Furthermore, even if a substantial sum of money is due to him, he is at best only a partner in the property, and by Torah law he cannot prohibit the other partners from entering. In addition, the leaders of the congregation submitted the deed and the certificate of occupancy allowing them entry onto the premises. With the members of the congregation in full legal possession of the mikveh, Maurice’s request for a cease and desist was easily discarded, and the Bet Din instructed his attorneys to proceed with the monetary claim for possible collection. As mentioned, a Bet Din will generally be very hesitant to prevent entry into a community building.