Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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5 - Kofin Al Midat Sedom in Modern Israeli Court Judgments. (Part 2)

Reuven illegally extends his apartment on common property. Can he rely on the principle of Kofin Al Midat Sedom to prevent his neighbors from demolishing it?

The above question was discussed by the Israeli Supreme Court in 1997. “Reuven” had built an extension to his apartment on an area which consisted of “common property” owned jointly by the other occupants of the apartment block. The neighbors obtained an order requiring Reuven to demolish his unlawfully built extension and to restore the common property to its previous state. Reuven petitioned the Supreme Court to reverse the order. The Court sat in a panel of 7 judges and debated the issue of “the abuse of property rights.”

How did the Court rule?

Justice Yitzchak Englard held that in case at hand, despite the fact that the extension to the apartment was constructed on area belonging to the “common property,” the Court had discretion to grant the requested relief and could prevent the demolishment of the extension, provided Reuven gave compensation to the other residents whose rights were violated.

Justice Englard rooted his decision in the principle that we have been discussing at length in the last few columns: Kofin Al Midat Sedom (the ability of the courts to coerce a person who behaves in an unjustifiably spiteful manner to do the right thing). In his opinion, where one party gains (Reuven) but the other does not lose anything (the neighbors), the application of this principle is likely to be more expansive than the conventional doctrine of an abuse of a right (which would prevent Reuven from profiting from his misconduct). He added the following sentiments:

“It is fitting that Jewish Law should serve as a source of inspiration for interpreting the provisions of section 14 of the Land Law, 5729 - 1969.”

[Section 14 states: “Ownership and other rights in real estate shall not by themselves justify the doing of anything that causes damage or inconvenience to another”].

“This is not only due to the fact that its language is enigmatic and confusing. It seems to me that the clear ethical trend that is common to the Jewish legal tradition concerning the concept of ownership, whose aim is to limit a person’s control over his possessions, should find expression in the law of the State of Israel as a Jewish and democratic state. It should be pointed out that, beyond the ethical-individualistic aspect of the principle Kofin Al Midat Sedom, it also contains an important social message; for it was the absence of this social aspect that sealed the verdict of the people of Sedom, in respect of whose evil traits this principle is named after.”

In light of this position, Justice Englard reached the conclusion that in the circumstances of our case it is preferable to prefer the granting of compensation to the injured neighbors rather than require Reuven to demolish the unlawfully constructed extension:

“It seems that an award of compensation, in place of demolishment, is compatible with the approach of Jewish Law in the framework of the principle Kofin Al Midat Sedom. It is true that there is a certain defect in the owner-neighbors’ use of the common property. However, in light of the “beneficiary’s” willingness to pay for his use of the common property, it appears that to destroy the building in these circumstances would be regarded as Midat Sedom, which may also contain an element of Bal Tashchit [the prohibition against the wanton destruction of anything useful to mankind]”!

“Woe is to him who builds his house without righteousness and his upper stories without justice” (Jeremiah 22:13).

By contrast, Justice Yaakov Turkel was of the opinion that the circumstances of this case could not afford any justification for violating the property rights of the other occupants of the common property, and that the original order to demolish the extension and restore the status quo should remain in force. Justice Turkel opens his ruling with the above apt citation from the words of the Prophet Jeremiah.

In the continuation of the judgment, Justice Turkel determines that the discretion of the court not to extend relief to a person whose proprietary rights are violated - is highly restricted. In the circumstances of the case, he argues, the laws of equity would also tilt the scales against Reuven who had built an unlawful addition to his house. Justice Turkel ends by stating that he disagrees with the conclusion reached by Justice Englard who applied to this case the principle of Kofin Al Midat Sedom:

“The rule of Kofin Al Midat Sedom is an important principle which Chazal employed in applying the laws of equity in Jewish Law; however, this rule is not able to uproot a negative commandment in the Torah.

It is an explicit pasuk that states: “You shall not move a boundary of your fellow, which the early ones marked out” (Devarim 19:14)… From this it follows that the principle of Kofin Al Midat Sedom cannot be employed to sanction an act of trespass and misappropriation of another’s land.

I would go even further. It would appear that an examination of the sources indicates that use has not been made of this rule in a manner that violates another’s ownership rights in land…”

The majority of the Justices followed the opinion of Justice Turkel - testimony to the caution that is required in applying the principle of Kofin Al Midat Sedom. Based on this restriction, the Court ruled that Reuven could not take advantage of his illegal act to secure an advantage to himself at the expense of his neighbors - even if he was prepared to pay for that advantage.

“Good Faith” v. “Midat Sedom” Concluded

We began this series by contrasting the principle of tom lev with the malice of midat Sedom.

In one celebrated case, Supreme Court Justice Elon refers to the words of Justice H. Cohn who stated: “Whenever in the interest of doing justice we deem it proper to ignore English and American case law, I have become accustomed to ascertain first whether there is some tree in the field of Jewish Law upon which the matter may be hung… This is because the justice that we try and do will be more sure and more established if it finds support in our legal tradition and in the wisdom of our forbears.” Justice Elon concludes by stating:

“These words apply with greater force to the matter at hand. The principle of good faith in section 39 of the General Contracts Law and the very expression “good faith” (tom lev) is an original Hebrew expression… For this reason, with regard to the interpretation of this concept, we are directed to turn first and foremost to Jewish Law.”

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

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Jewish Law in our Times > Good Faith and Midat Sedom

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