THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 299 • Robbing Real Estate

As I stated in the last lesson, I hope to get back to the voluminous topic of Dina D’Malchuta Dina in a few weeks.

In the Shulhan Aruch, Rabbi Yosef Karo, after the chapter on Dina has a few chapters regarding robbery. In the last lesson we discussed Rabbinic declared robbery. In this lesson we learn that real estate does not lend itself to being robbed or stolen. A strong person may force the owner off the real estate, but it still remains the real estate of the owner.

Shimon owns a field. Reuven forces Shimon off his field, or in Shimon’s absence, Reuven occupies Shimon’s field and holds himself out to be the owner of the field, not by claim of right as having purchased the field or having inherited or having received it as a gift.

Real estate cannot be robbed to transfer ownership of the field from Shimon, the owner to Reuven, the robber. No matter how many transfers follow the “robbery” of the field by Reuven, Shimon can always reclaim his field from the current possessor of the field. The current possessor can make a claim against the person who sold him the field, until the first purchaser can make a claim against Reuven the original robber. When Shimon reclaims the field from the current possessor he does not have to reimburse the possessor for the money he paid for the field. The laws of this paragraph hold true even if Shimon has at any time abandoned hope of recovering possession of the field.

But if Shimon could have brought a law case to recover the field and failed to do so and declared that he abandoned hope of recovering the field, then it is deemed that he actually did abandon the field and it is declared ownerless and Reuven has acquired the field, or whoever holds it possesses it from him.

Since Shimon’s field is deemed owned by him even when it is forcibly in possession of Reuven, losses to the filed from natural sources are borne by Shimon. Reuven can always say to Shimon “Here is your field.” However, if the deterioration came about because of acts of Reuven, he is responsible for such losses. For example, he dug holes or caves, or he cut down trees or he ruined the wells or razed structures on the field. Then Reuven must return the field in the state that it was before the damages inflicted by Reuven. If he razed a structure he must rebuild it, or if he cut trees, he must replant trees in a comparable state, or he must pay for the damage inflicted. All of the appreciation brought about by the efforts and money of Reuven must be paid to Reuven by Shimon when he retakes possession of the field.

If the field that Reuven robbed from Shimon was robbed from Reuven by Levi, and Shimon cannot obtain the field from Levi, Reuven must purchase for Shimon a field comparable to what Reuven robbed, or pay Shimon the value of the field that Reuven robbed from Shimon. If Levi is a brigand who robs many fields and Shimon’s field was one of many robbed by Levi, then Reuven is not required to make good the value of the field that Levi robbed, since Levi would have robbed his field no matter in whose hands it was. But if this field that Levi seizes because it is in the hands of Reuven, the result is that Reuven is indebted to Shimon.

There are times when the robber causes damage to the robbed real estate by digging holes or putting into the soil fertilizer or acids that harm the particular soil, or cutting down trees or selling the fruits and other crops that the robbed real estate yielded. Or the robber, Reuven, owes money to Shimon, the owner of the real estate, because another stronger person, Charles, robbed from Reuven the real estate that Reuven robbed from Shimon. In the meantime Reuven sold his own real estate to Levi.

Question, does the victim have a lien on the robbers’ real estate?
Assume that...
January 1 - Reuven robbed “Field A” from Shimon.
January 1 - Reuven owns his own real estate designated as “Field B”.
February 1 - Reuven, the holder of the stolen Field A causes $100 worth of damage to Field A.
February 15 - Reuven sold Field B to Levi.
March 1 - Shimon brings a law suit to recover Field A from Reuven. Shimon wins his lawsuit against Reuven and he is awarded back the Field A and $100 for damages caused by Reuven to Field A.
March 2 - Shimon wants to collect the $100 from Reuven, The officer of the Beth Din goes to Reuven and finds that Reuven has no assets to pay the $100.

Question? May Shimon ask the Beth Din officer to go to Levi and recover the field that Reuven sold to Levi after Reuven caused damage to Shimon’s field?

Had the $100 been due for a loan from Shimon to Revuen evidenced by a proper note of indebtedness dated prior to February 15, Shimon cold have instructed the Beth Din officer to proceed to collect the $100 from Levi by taking back the field that Reuven sold to Levi after the loan was made by Shimon to Reuven. In the case of a note of indebtedness the note acts as a lien on all the assets of the debtor. If the debtor sells any of his real estate it is sold subject to the lien of the prior creditor lender. The case of the robber is not similar to that of a borrower. The officer of the Beth Din can only collect from assets of Reuven on hand when he comes to collect and the officer of the Beth Din acting on behalf of Shimon cannot go after Levi since damages caused by Reuven does not create a lien on Reuven’s real estate. The reason is that when Levi purchases Field B from Reuven he does not know the extent of damages that Reuven caused to Shimon’s field. In the case of the debt arising from a borrowing and a note of indebtedness is written and delivered to Shimon, the amount of the debt is fixed and Levi knows what his potential loss is if he loses Field B to Shimon. And this is considered by Levi in purchasing Field B from Reuven. Had Beth Din rendered a judgment in favor of Shimon prior to February 15, then Levi would have purchased Field B subject to Shimon’s lien in the amount of $100 and the Beth Din officer could have taken Field B from Levi to pay Shimon. If prior to February 15, had Reuven written a note of indebtedness to Shimon to evidence the damages he caused to Field A, then Shimon could have collected the damages from Field B that Reuven sold to Levi after the date of the note of indebtedness.

The subject matter of this lesson is more fully discussed in volume IX chapter 371 and 372 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il