THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 126 (part two) • Partition of Real Estate

We are continuing the right of one joint owner to sue the other in Beth Din to partition their jointly owned property. The halachah set definite criteria for how much each owner will have to own after it orders partition. If the amount will be small than such minimum amount, Beth Din will not order partition. The part that each receives must be at least four cubits square, or about 49 square feet. (I have used an “amah”, the measure used in halachah, to be twenty-one inches. Many readers will write that Rabbi Feinstein has a measure slightly larger than exactly 21 inches, as does the Hazon Ish. I have used 21 inches since it fits in well with measurements used in the United States. Thus four amoth is 84 inches equaling seven feet.) There are other requirements of area as well, but that is not within the scope of our lesson.) In the case of a garden it must be large enough to sow one quart of seed in each half of the garden after it is partitioned. In the case of an orchard it must contain at least thirty-six trees for each half of the orchard after it has been partitioned. 

These dimensions are guidelines for land that has high yields as in the Land of Israel. In other lands, Beth Din should determine the dimensions taking into account whether it is economically feasible to work such a parcel of land after it has been partitioned. 

In the case of personal property, the test is not how big the thing is but rather can it be effectively divided. If there is a disagreement between the parties. then Beth Din will decide if partition can be demanded or the parties must avail themselves with the sell or buy option described in lesson 127. The same applies to living things, such as a cow owned jointly by Reuven and Shimon; the cow cannot be cut in half and therefore partition will not be a remedy but rather the sell or buy option is a solution. Most of us do not own a cow jointly, or even not jointly. Although there were some Jews in America that owned a cow so that they would have Chalav Yisroel. 

Assume that instead of only two joint owners there are three joint owners. Reuven, Shimon, and Levi who as joint owners own a piece of land containing 150 square feet. Reuven and Shimon own forty percent of the land each and Levi owns twenty percent. If they divide the land Reuven and Shimon will each receive sixty square feet, that is more than the 49 square feet required for one joint owner to demand partition. But Levi would receive only thirty square feet, which is not sufficient. Therefore, Reuven and Shimon cannot demand partition against the wishes of Levi. Levi may prevent the partition since his part of the land will be less than forty-nine square feet. 

Had the joint owners each owned a one-third interest in the land, each would receive fifty square feet and each could demand partition from the others. 

That which has been said above relating to partition was in regards to land. Regarding houses there is not an agreed upon minimum area that must be left to shimon in the house for him to have to agree to partition. There is an opinion that there must be the same forty-nine square feet and there is another opinion that there must be at least 73.5 square feet. Beth Din should in each case determine if the house can be partitioned so that each half can be used as a separate unit. In the case that came before our Beth Din with the friends in Ashkelon, we were able to work out an agreement for partition following the aforesaid formula. 

Beth Din will not order a partition even if each party has the requisite minimum, if to do so will cause the house to deteriorate. Also, no partition will be ordered unless each joint owner has ingress to and egress from the part of the house he will receive after partition. Since there are many more factors involved in partitioning a house than there are in partitioning land, Beth Din should examine each case to determine if it will be fair to the party who does not desire partition. 

Seats in a synagogue have traditionally played an important role in the life of a seat holder. I remember about 10 years ago when visiting a friend on the west side of Manhattan, my friend and I went to shool on Shabbat morning. The shool we selected had about 600 mens’ seats. There were about 20 men in the shool. There were two women in the women’s section, Rena and my friend’s wife. In the middle of Musaf a man walked in asked me to vacate the seat I was sitting in. It seems that was his seat. I complied with his request by moving to one of the other about 580 vacant seats. 

As stated above, if Reuven and Shimon have each been using a certain area in the land, it could be partitioned and a wall placed between the parts. In a synagogue the situation is sometimes similar. Each worshiper has his own place that he has been using for some time. Can Reuven, one of the worshipers, place a wooden or other type of separation between his seat and the next seat occupied by Shimon? Shimon protests that if the partition is installed he will not be able to sit comfortably. Reuven may install the partition. Reuven's partition must be low enough not to block out the light coming to Shimon's seat. 

Reuven has the aisle seat on a bench that has five seats and Shimon has the seat next to Reuven, the second seat from the aisle. Reuven wishes to add to the bench by placing another seat extending into the aisle and to add a partition between his new double seat and Shimon's seat. Shimon protests that he will now be the third seat from the aisle instead of the second seat from the aisle. This assumes that the second seat from the aisle is more expensive to purchase or more prestigious than the third seat. Shimon will be able to prevent Reuven from adding to the bench and from setting up the partition. 

Reuven is wealthy and has purchased many seats in the synagogue. The officers of the synagogue wish to add chairs and benches in some of the vacant spots in the synagogue and thus provide more seats for those who need them. Reuven protests such additional chairs and benches saying it will interfere with his getting around the synagogue by making him take a longer route to reach the reader's platform or making it too narrow for him to proceed about the synagogue. The better view is that Reuven cannot prevent such additional seats and benches if there are no longer any seats available to those who wish to purchase them. If there are seats available but not so well located, then Reuven can prevent the additional seats and benches until all of the available seats and benches have been sold or distributed to the members. 

In cases where the custom in the community is that if a member does not occupy his seat for a prolonged period the seat must be rented to one who will use it, then the custom of the synagogue must be followed. 

If any of the members of the synagogue wish to build another synagogue they may do so and may not be hindered by the members of the old synagogue, unless Beth Din determines that some untoward results will flow from building the new synagogue. 

Assuming that Reuven and Shimon purchased The Holy Writings consisting of the twenty-four books of The Bible written by a scribe on one scroll. They may not be partitioned by dividing the scroll into parts. If they were divided before they purchased them, they may be partitioned between the parties. An individual owner may divide such a scroll into its component parts. But it is not seeming for joint owners to so treat the Holy Writings. 

The subject matter of this lesson is more fully discussed in Vol. V, Ch.171 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 

Questions to quint@inter.net.il