Property

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PROPERTY

Classification

Property may be divided into different classes in accordance with the various legal principles applicable thereto. One common division is between immovable property and movables, distinguished from each other in the following respects among others: in their different modes of *acquisition, since there cannot be a "lifting" (hagbahah) or "pulling" (meshikhah) etc., of land; the law of overreaching (see *Ona'ah) applies to the sale of movables but not land, apparently because land is always distinctive by virtue of its quality and situation and frequently it is of varying value for different people (see Sefer ha-Ḥinnukh, no. 340); in the case of land a rival claim to ownership may be resisted upon proof of three-year possession (see *Ḥazakah), whereas movables which are in a person's possession for any period of time are presumed to belong to him; litigants are only required to swear an *oath if the dispute concerns movables and not land; unlike movables, land can never be stolen (see *Theft and Robbery) since it cannot be removed or carried away – and it is for this reason that originally only the debtor's land and not his movables became subjected to the creditor's *lien (although later, as a result of changed economic circumstances, the lien was extended by the Babylonian geonim to both categories, probably because the majority of Jews had ceased to be landowners at that time). The laws relating to slaves resemble those applicable to land in some respects – for instance as regards overreaching – and in other respects resemble the laws applicable to movables – for instance as regards incidental acquisition (kinyan aggav, Tos. to bk 12a).

For the purposes of debt recovery, land is divided into best, median, and poorest quality (iddit, beinonit, and zibburit, respectively). A claim arising from tort is recovered from land of the best quality, the creditor's claim from the median, and the wife's ketubbah from the poorest (Git. 5; see also *Execution). In biblical times land was further classified according to location, thus, "a dwelling house in a walled city," "land of one's holding," "land that is purchased" (Lev. 25:25ff.; 27:16ff.).

Movables may be classified by a number of criteria:

(1) perot ("fruits" or "produce") and kelim ("vessels" or "utensils"), the one for consumption and the other for use respectively; the latter serve for the purpose of acquiring by barter by way of kinyan sudar, the former not (see *Acquisition, Modes of);

(2) animals and other movables, the former requiring three-year possession for establishment of title whereas hazakah of the latter is immediately acquired (Sh. Ar., Ḥm 133–5);

(3) coins which are legal tender constitute a special category of movables which cannot be acquired or alienated by barter and can only be given as a loan for consumption but not for use and return (i.e., the borrower need not return the very coins of the loan);

(4) deeds are another separate category of movables since these are not in themselves property but only serve as evidence of their contents, and they differ from other movables in their modes of acquisition (see *Shetar; *Assignment).

A criterion unrelated to physical differences is one between property that is owned and ownerless property (hefker), for which there are different modes of acquisition. Owned property is further subdivisible into public property (see Meg. 26; bb 23a and Tosafot) and private property (including joint ownership (see *Partnership)); and into consecrated property (*hekdesh) as distinct from property of the common man (nikhsei hedyot). It is forbidden for the common man to derive a benefit from consecrated property as long as it retains its sanctity of which there are different categories (see *Hekdesh).

Consecrated property is further distinguished from property of the common man as regards the modes of acquisition and the applicable laws of overreaching, tort, etc. Land which is owned may be classified into free, unencumbered property (nekhasim benei ḥorin) and encumbered and mortgaged property (nekhasim meshu'badim), the latter being land sold by the debtor to others but remaining charged in favor of his creditors for the repayment of debts which cannot be recovered out of his free property (see *Lien).

Another separate category is property from which no enjoyment may be derived, such as *ḥameẓ ("leaven") on Passover, the ox that is condemned to death by stoning, fruit of the orlah (i.e., the first three years), etc. Such property is not considered to be in the possession of its owner, nor apparently does the latter have a full proprietary right thereto since it not only cannot be enjoyed but may not even be purchased or sold (see *Lien).

Property is further divisible into capital, fruits or profits, and improvements (keren, perot, and shevaḥ, respectively). The capital is the property as it is at any given time; the fruits are the profits derived therefrom; and the improvement is the increase in market value of the property – whether deriving from actual improvement, natural or effected, or from increase in market price without such.

Proprietary Rights

ownership

This is the most common proprietary right and is closely connected with possession. A person is the owner of property if he has possession thereof for an unlimited period, or if it is out of his possession for a limited period only and thereafter is due to be restored to him for an unlimited period – for instance when it had been let, lent, or even when it has been lost or stolen or robbed from the owner in circumstances where it may be surmised that he will regain possession of the property; if not, his ownership of the property will likewise terminate. Since the same property may be in the possession of different people – for instance, one in possession of a dwelling and another of its upper floor – it follows that ownership may be shared by different people with each owning a defined part of the property. The owner does not have unrestricted freedom to deal as he pleases with his property. In biblical times for instance it was not possible to sell a field in perpetuity, but only until the Jubilee Year. Other restrictions have applied at all times, including the following: a person may not use his land in such a manner as to disturb his neighbors in the normal use of their land (see *Nuisance); in certain special circumstances a person is obligated to allow others the use of his land (bk 81a).

rights in the property of others

Short of ownership, a person may have proprietary rights in the property of others (jura in re aliena). Such rights are not exhausted by the recognized legal categories thereof, but may be freely created by the parties thereto in a form and on conditions suited to their needs, without restriction. Broadly, however, these rights may be classified as falling into one of the following three categories: a right to the use of another's property along with its possession as in the case of hire (see *Lease and Hire), loan, and bailment; a right to the enjoyment of another's property without its possession – such as the right to project a bracket into the space of the neighboring courtyard; a right in the form of a charge on another's property, such as a mortgage, and the abutter's rights (see *Maẓranut; *Execution). All the above proprietary rights have in common the fact that they avail against the whole world, including the owner of the property concerned, continue to attach to the property even if it be sold to a third party, and cannot be cancelled without the right-holder's consent. Hence these rights are like a form of limited or partial ownership for a specific purpose – their acquisition being a "transfer of the body for its fruits," such as transfer of a tree for its fruit, a dovecote for the fledglings, or land for a road or thoroughfare (see *Servitude). Similarly, hire is like a sale for a limited period and loan like a gift for a limited period (Yad, She'elah 1:5; Sekhirut 7:1). However, this does not really amount to full, nor even limited, ownership (Nimmukei Yosef, bm 56b, in the name of Ran), but only to a real right in the property, available against the whole world.

The most common of the first of the above-mentioned categories of jura in re aliena, i.e., with possession, is hire or *lease. The lessor, like the lender or bailor, may not withdraw during the subsistence of the contract and the lessee's rights are protected against all comers, including the lessor. A contract of lease may take various forms and, in the case of land, may be for monetary remuneration or the right to work the land for a proportional part of the produce (Yad, Sekhirut 8:1) – the latter right either for a fixed period or passing on inheritance; the lease may even take the form of a sale of the land for return after a number of years. The "sale for the fruit" is so close to the transfer of ownership that the amoraim disputed whether acquisition for the fruits was an acquisition of the land itself (kinyan ha-guf; Git. 47b), i.e., whether the sale of a field for its fruits involved transfer of the field's ownership or not. When the law of Jubilee Year was observed, any sale of a field was in fact no more than a sale for its fruits.

The proprietary rights attaching to the above relationships carry also corresponding personal rights or obligations. Thus in the case of movables it is the duty of the hirer to take care of the hired property and he assumes liability for damage arising from his negligence, or from the loss or theft of the property, and – in the case of loan – even from inevitable accident. These obligations are separate from the proprietary right in question and the two may even come into effect at different times (see Tos. to bm 99a). Thus an unpaid bailee who has mere custody or detention, but not possession, of the deposit – since it may be removed by the owner at any time – apparently has not proprietary right in the deposit but only the obligation to take proper care thereof and to compensate for his neglect to do so. Other similar obligations may be circumscribed by agreement in the same way as are the terms of the real rights, since both may be created by the parties in a manner they think fit.

The second of the above-mentioned categories of proprietary rights are those which allow a person the enjoyment of another's property without its possession. These include a man's right to cause a nuisance to his neighbor or to project an abutment into the airspace of his neighbor's court (see *Servitude). Similarly, a man buying a tree has the right of having it stand in the land of the seller (bb 81b), or the owner of a vine or shrub to have it cling to the tree of his neighbor (bm 116b). These too are proprietary rights which are transferable to others and available against purchasers of or heirs to the servient property, the owner whereof may not withdraw from or cancel the said rights.

Acquisition and Transfer of Proprietary Rights

The usual transfer of proprietary rights is by the parties' will. There are two categories of voluntary acquisition of ownership, the first involving the acquisition of ownerless property, and the second acquisition of property from its former owner. For acquisition of the former, i.e., original acquisition, it is necessarily required that the person becoming entitled thereto have possession of the property together with the intention of acquiring its ownership. Hence in this case the formality of acquisition is satisfied by way of a "lifting" or "pulling" of the property, or by its presence within his "premises which are guarded for him" or his "four cubits" (arba ammot), or, in the case of land, by acts revealing his control thereover (i.e., ḥazakah).

For the acquisition of property from its former owner, it is not necessary that the acquirer have possession of the property, which may be at any place whatever. In this case acquisition takes place by consent of the parties and their making up their minds to the transaction so as to exclude withdrawal therefrom. Here too it is not sufficient that the parties make up their minds, but this fact must also be revealed in a manner that is recognized by all. In general it is customary for the parties to make up their minds and complete the formal acquisition by the same modes as those applicable to the acquisition of ownerless property; additional modes of acquisition in this case are those which naturally reveal that the parties have made up their minds – including by way of money, deed, delivery (mesirah), barter, or by way of an act or formality which for historical reasons had become recognized as an act of acquisition, such as kinyan sudar (acquisition by means of the "kerchief") and kinyan aggav (incidental acquisition). These acts are not symbolic of anything else, but are acts bringing about the making up of the parties' minds and its revelation. Hence if in a particular locality some other act is equal legal validity (as, e.g., in the case of kinyan customary in the closing of a transaction, it will be of sitomta, i.e., affixing of a mark).

For details, see *Acquisition, Modes of.

Extinction of Ownership

A person's ownership of property is extinguished when he is reconciled (makes up his mind) to the fact that he no longer has permanent possession of the property or that it will no more return to his permanent possession. Here too his state of mind must be revealed and recognizable to all, save that no formal act is required and it may be indicated by speech or conduct alone. Thus ownership terminates upon (1) *ye'ush ("despair"), i.e., when the owner abandons hope of recovering possession of property of which he has been deprived, for example through loss or theft; (2) abandonment or reunification, whereby the owner reveals his intention to terminate his ownership, whether or not the property be in his possession (see *Hefker); (3) transfer or alienation of property to another, whereby the owner reveals his intention to terminate ownership thereof but only through its acquisition by a specific person and only from the moment of such acquisition. Transfer of ownership other than by the will of the parties concerned, takes place on a person's death (see *Succession), or upon forfeiture by order of the court, or by the operation of law (see *Confiscation, Expropriation, Forfeiture). Ownership is also extinguished upon the destruction of property or its transmutation (shunnui, specificatio).

In the State of Israel

Property law in the State of Israel is governed mainly by Knesset laws, such as the Water Law, 5719 – 1959; the Pledges Law, 5727 – 1967; the Bailee's Law, 5727 – 1967; the Sale Law, 5728 – 1968; the Gift Law, 5728 – 1968; the Land Law, 5729 – 1969; etc. Some of the provisions of the above laws are in accordance with Jewish law on the particular subject.

bibliography:

T.S. Zuri, Mishpat ha-Talmud, 4 (1921); Gulak, Yesodei, 2 (1922), 172–6; idem, Le-Ḥeker Toledot ha-Mishpat ha-Ivri bi-Tekufat ha-Talmud, 1 (Dinei Karka'ot, 1929); G. Webber, in: Journal of Comparative Legislation, 10 (1928), 82–93; Herzog, Instit, 1 (1936); Elon, in: ilr, 4 (1969), 84f., 90–98, 104f. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:69, 101f., 476f., 482f., 822f.; 3:1364f.

[Shalom Albeck]

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