THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 135 (part six) • Right of First Refusal

Lesson # 136 (part seven - last part) • Right of First Refusal
As I wrote in the last lesson, this will be the last lesson for now on the right of first refusal. IYH, with the next lesson we shall commence to discuss the halachik principle of lifnim mishurath hadin, on which the principle of the right of first refusal is based.

Many of the readers raised the following question. Throughout these lessons I have been writing about one contiguous (touching) neighbor. I have been asked since most parcels of land usually have more than one neighbor, how is he right of first refusal exercised?

There are four neighbors who own land contiguous to the land being sold by Reuven. Shimon on the east, Issachar on the west, Zevulun on the north, and Gad on the south. They may all exercise the right of first refusal and the land being sold by Reuven will be divided along its diagonals so that each will purchase a quarter of the field being sold by Reuven, and contiguous to his own field.

Assuming five contiguous neighbors, one each on the north, east, and west sides of the field being sold and two contiguous neighbors on the south side, the two neighbors on the south side are considered as one neighbor and they may exercise their right of first refusal by dividing the quarter of the field being sold on the south side. The other three neighbors may exercise the right of first refusal by each purchasing a quarter of the field contiguous to his own field.

Neighbors share in the right of first refusal if they exercise their right at the same time or close enough to be deemed contemporaneous. Also, Reuven and Levi should try to accommodate all of the neighbors in doing that which is right, and if they all came simultaneously neither Reuven nor Levi may sell to less than all the neighbors who have exercised their right of first refusal.

But if one neighbor, Zevulun, exercises his right of first refusal first. either from Reuven or from Levi if Reuven has already sold his field to Levi, then Zevulun will keep the entire field he purchased and need not share it with the other contiguous neighbors. This is true even if the contiguous field owned by Zevulun is smaller than the fields owned by the other contiguous neighbors and even if it has a smaller common boundary with the field being sold by Reuven.

If any of the neighbors are not in the community when they have to exercise the right of first refusal, then this is not an act of God excusing the immediate exercising of the right of first refusal, and the neighbors who are present may exercise the right of first refusal to the exclusion of those who are out of town.

If the neighbor's field on the east is jointly owned by Shimon and Pinchas, and the field on the west is owned by Shlomo, and Pinchas exercises the right of first refusal, Shlomo cannot object that Pinchas's right is not yet established. Shlomo cannot plead that perhaps Pinchas and Shimon will partition their field and Pinchas will end up with a part of their jointly owned field that is not contiguous to the field of Reuven being sold. Similarly, if Levi purchases Reuven's field he cannot defend against Pinchas when Pinchas exercises his right of first refusal. Similarly, the field being sold is jointly owned by Reuven and Isaac, and Reuven sells his interest to Levi, a noncontiguous owner, and Isaac waives his right of first refusal. Levi cannot defend against Shimon, a contiguous owner, by pleading that perhaps when the field being sold is partitioned the part that will be received by Levi will not be contiguous to the field owned by Shimon.

The question arises, can Shimon partially exercise his right of first refusal? Levi purchases the field from Reuven. Shimon wishes to exercise his right of first refusal, but not to purchase the entire field that Levi purchased from Reuven, but only to purchase part of such field. Levi can refuse to sell to Shimon unless Shimon purchases all of the field; Shimon must elect to purchase all or none of the field.

Levi purchased one field from two owners. Levi may still insist that Shimon purchase all or none of the field. Shimon is not doing the right thing by depriving Levi of half of his field. However, if Levi and Dan purchased the field from Reuven, Shimon can purchase the ownership of both Levi and Dan or the ownership of Levi only.

If Levi purchases two fields from Reuven. Shimon can exercise his right of first refusal for one or both fields. However, if Levi purchases parcel #1 from Reuven and Shimon did not exercise his right of first refusal regarding parcel # 1 and then Levi purchased parcel #2 from Reuven, Shimon cannot exercise his right of first refusal regarding parcel #2 since Levi is now also a contiguous landowner resulting from his purchase of parcel #1. This may not hold if Beth Din determines that the two transactions were merely an attempt to defraud Shimon.

There are situations where the right of first refusal does not apply. Shimon, the contiguous landowner, does not want to purchase the land Reuven is offering for sale. Joshua and David, who are not contiguous landowners, each wants to purchase the land from Reuven. Joshua resides in the same city where the land is located and David resides in another city. If all of the facts are similar as to price and purpose of the purchase, Beth Din will grant priority to Joshua since he resides in the same city as the land. If both Joshua and David reside in the city and Joshua is a Torah scholar and David is not, priority will be given to Joshua.

If Joshua is a neighbor of Reuven (but not a contiguous landowner) and David is not a neighbor, priority will be given to Joshua.

In all of these situations. if David purchased the land from Reuven before Joshua went to beth din. the sale to David will not be rescinded.

As I stated on several occasions, the purpose of studying Torah civil law is to make us better Jews in that we will behave in a more fitting way to our fellow Jews. If we know what the law is we can avoid strife and we can better accommodate our neighbors. This is what Hashem expects from us. But if we don’t know what is correct, how can we act in a better way?

Beginning wit the next lesson there will IYH be a few lessons devoted to the subject of acting beyond that which is required of us.

The subject matter of this lesson is more fully discussed in Volume V Chapter 175 of A Restatement of Rabbinic Civil Law byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. Questions to quint@inter.net.il