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Kofin Al Midat S'dom: Jewish Law's Concept of Abuse of Rights

Published online by Cambridge University Press:  12 February 2016

Shmuel Shilo
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The Jewish legal system's concept of Kofin al midat S'dom (kofin, in this essay) is a rule of equity whose scope of application is almost without parallel in other legal systems. Strict translation of this phrase, which is “one is compelled not to act in the manner of Sodom” is not very helpful. The rule is interpreted to mean that if A has a legal right and the infringement of such right by B will cause no loss to A but will remove some harm from, or bring a benefit to B, then the infringement of A's right will be allowed. Such a concept at once brings to mind the modern view concerning abuse of rights. There is, in fact, much in common between the two principles but they are certainly not the same. According to one legal system a certain given fact situation can have the legal principle of abuse of rights applied to it, while in another legal system a different rule of law would be resorted to. To illustrate: In certain jurisdictions the right to privacy is based on the concept of abuse of rights, while in others, as is the case in Jewish law, such a right is independent of the equivalent abuse of rights—kofin. So with other rights such as the right to light or unfair trade competition. An attempt will be made in this essay to show the range and the limits of the kofin principle. We will discuss those problems which are dealt with within the framework of kofin even if their non-Jewish parallel is one which is far from the concept of abuse of rights. Conversely, we will not examine those questions which, in other legal systems, fall within the ambit of abuse of rights but are not looked upon, in Jewish law, as problems to which the rule of kofin is to be applied, since they have been solved by other legal rules.

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Israel Law Review , Volume 15 , Issue 1 , January 1980 , pp. 49 - 78
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1980

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References

1 See e.g., Scholtens, J.E., “Abuse of Rights” (1958) 75 S.A.L.J. 39 at 41–42.Google Scholar

2 See “Hezek Re'iah”, Talmudic Encyclopedia, Vol. 8, pp. 659–702.

3 See Scholtens, ibid.; Walton, F.P., “Motive as an Element in Torts in the Common and inthe Civil Law” (1909) 22 Hvd. L.R. 501 at 512Google Scholar; Gutteridge, H.C., “Abuse of Rights” (1933) 5 C.L.J. 22 at 33CrossRefGoogle Scholar; Catala, , Weir, , “Delict and Torts; A Study in Parallel” (1963–1964) 38 Tul. L.R. 221, 222, 247Google Scholar; cf. “Harhakat Nezikin”, Talmudic Encyclopedia, Vol. 10, p. 628 at 660–663.

4 See Walton, ibid. at 518; cf. “Hassagat Gevul”, in Elon, M., The Principles of Jewish Law (Jerusalem, 1975) 340–346.Google Scholar

5 Erubin 49a; Ketuboth 103a; Baba Bathra 12b; ibid. 59a; ibid. 168a.

6 Baba Bathra 12b. (All translations of the Talmud are taken from the Soncino translation).

7 Ibid.

8 Ibid.

9 This question would probably find its soution in Israeli law without having to resort to general principles of equity or the abuse of rights concept. Two specific sections of the Law of Succession, 5725–1965 (59 L.S.I. 58) would seem to lead us to a similar conclusion. The Israeli legislator follows a reverse path. First, an equitable distribution and only if that is not possible—the use of lots. Sec. 112 states: “The assets of the estate shall as far as possible be distributed among the heirs in specie having regard to the usefulness a particular asset is likely to have for a particular heir and the sentimental value a particular asset has for a particular heir”. Sec. 116 complements sec. 112; “Asset snot capable of being dealt with in accordance with secs. 112 to 115 shall be distributed among the particular heir”. Sec. 116 complements sec. 112; “Assets snot capable of being heirs by lot”. Cf. Litwinsky v. Litwinsky (1959) 18 P.M. 64 at 67–68 (per Lamm J.) given prior to the passing of the Law of Succession, where Jewish law was applied concerning this question and Englard's, I. incisive comments on this judgment in “The Problem of Jewish Law in a Jewish State” (1968) 3 Is.L.R. 254 at 271–273.CrossRefGoogle Scholar

10 Baba Bathra 59a.

11 Ketuboth 103a.

12 Baba Bathra 168a.

13 Erubin 49a.

14 Maimonides, Hilkhot Shekenim, chap. 7, sec. 8; ibid. chap. 12, sec. 3; Shulkhan Arukh, H.M. chap. 154, secs. 6, 13, 16; ibid. chap. 174, sec. 1; Resp. Rashba I, 1, 144; ibid. II, 43; ibid. III, 96; ibid. VII, 461; Resp. Rosh 97, 2; ibid. 98, 1, 7; Resp. Rivash. 409; ibid. 430; Resp. Node B'Yehuda II H.M. 24; ibid. E.H. 31; Resp. Hatam Sofer O.H. 30 and many other sources too numerous to be listed here.

15 Maimonides, ibid. chap. 7, sec. 8. In a responsum from Ashkenaz about the same period, Ra'avan decided that a lessor could not compel his tenant to leave the premises for some time so that the lessor could make alterations in the house—even if the lessor would provide the lessee with adequate housing in the interim. Ra'avan writes that even though the lessee cannot be forced to leave the dwelling, if no loss would be incurred by him if he left, only the moving would annoy him, the court should try to persuade the tenant to act beyond the line of the law —lifnim mishurat hadin (Ra'avan, beginning of Baba Bathra; Resp. R. Meir of Rothenberg, Prague-Budapest, 687. See too, Shilo, S.. “On One Aspect of Law and Morals in Jewish Law, Lifnim Mishurat Hadin” (1978) 13 Is.L.R. 359–390Google Scholar). It is not clear if this responsum alludes to kofin; the term Kofin al midat S'dom is not mentioned in the responsum.

16 Ibid. 12, sec. 3. See too, Maimonides' commentary to the Mishnah Demai 6:8. It seems that at first Maimonides understood this Mishnah within the context of kofin, but later changed his mind. Compare the standard editions of Maimonides' commentary with that found in Kapah's edition of Maimonides' Mishnah commentary. Taking into account other classic commentaries to the Mishnah, and the general context of chapter 6 of Demai, it appears that the later explanation of Maimonides is closer to the truth in that this Mishnah does not concern itself with questions similar to kofin, but is concerned with specific problems of Jewish agricultural law.

17 Ktzot HaHoshen H.M. 154 sub-section 1.

18 Even Ha'Ezel, Hilkhot Shekhenim 12, 1. In very clear language, one of the leading, almost contemporary, rabbis writes that one does not coerce “where there is a little loss”; one coerces when “he does not lose anything”. “(Resp. Shoel U'Meshiv IV, 3, no. 82; cf. Resp. Emek Halakha, vol. 1, p. 26.

19 Hiddushei HaRashba, Baba Bathra 12b.

20 Resp. Rashba VII, 461.

21 Resp. Rashba III, 91.

22 Resp. Rashba I 1, 143. The view that the trouble involved with having to keep a document can be adequate cause to have kofin rejected, was followed by a number of leading respondents. See Resp. Rivash 409; cf., ibid. no. 471; Resp. Maharsham V, 11, cf., ibid. IV, 1.

23 The fourth responsum is Resp. Rashba II, 43.

24 Piskei Rosh B.B. ch. 2, sec. 3.

25 Resp. Rivash 471. As to another question concerning the right to build and seal entrances and windows in connection with kofin see Nimukei Yosef to Alfasi, Baba Bathra 32a in Vilna edition of Aliasi, s.v., petah; Sh. Ar. H.M. 154, 3 in Rema's glosses.

26 See e.g., Hidushei HaRitba to Baba Bathra 12b. s.v. ha'hu.

27 Ibn Migash's commentary to Baba Bathra 12b.

28 Maimonides, Hilkhot Shekhenim, chap. 12, sec. 1. Cf. Yad Remah to Baba Bathra 12b. sec. 159.

29 Hiddushei HaRashba, Baba Bathra 12b.

30 Resp. Maharik, 112. The generally accepted version of the text in Ketuboth concerning the case of the mill is “if he (the lessee) has (sufficient orders) for grinding at his mill he may in such circumstances be compelled (not to act) in the manner of Sodom”. According to this reading, kofin can be applied because he has other clients. But, it seems, that Maharik's reading was not that he has customers but that such customers are found. In other words, according to this reading, the mill's lessee has potential customers who would probably pay for the mill's use, but they are only potential customers. So, writes R. Joseph Colon, “Even where there is bother and it is possible that one may entail a loss like the case (in Ketuboth) concerning which it was stated there (Maharik brings the mill case according to his version of the text), even though it is not sure that he will find someone to pay for the mill's use”. Maharik then goes on to bolster his argument by explaining that from the Talmud's phraseology it seems that new fact situations which may arise can have kofin applied to them even if they are not completely similar to the Talmudic cases; it is sufficient if they are somewhat similar. See too, Resp. Maharik, 9, where R. Colon comes to the same conclusion, again by explaining the Talmud's reasoning in such manner that suits his theory. For variant text readings to Ketuboth see Dikdukei Soferim HaShalem, Ketuboth, vol. 2, p. 432; cf. Magen Abraham to Sh. Ar. O.H. 364 sub-sec. 3; Pilpulei Harifta to Rosh B.B. chap. 3, sec. 72.

31 Bradford v. Pickles [1895] A.C. 587; 73 L.T. 353.

32 See, for example, Walton, op. cit. supra n. 3, at 518; O'Sullivan, R., “Abuse of Rights” (1955) Current Legal Problems 61 at 68–69CrossRefGoogle Scholar; Zeltner, Z., “Abuse of Rights” (1970) 2 Mishpatim 465 at 467.Google Scholar But cf. Fridman, G.H.L., “Motive in the English Law of Nuisance” (1954) 40 Va.L.R. 583, at 587–588, 595.CrossRefGoogle Scholar

33 See Catala, Weir, op. cit., supra n. 3, at 224; H.C. Gutteridge, op. cit., supra n. 3, at 34; Zeltner's article, ibid.

34 Tosafot, B.B. 12b s.v. Maalinan.

35 Shita Mekubetzet B.B. 12b s.v. Ma'alin; Hiddushei HaRashba B.B. 12b s.v. ho de'amer Rava.

36 Resp. Rosh 97, 2.

37 See Rashi, B.B. 12b s.v. amru.

38 Resp. Rosh 98, 1. See too, Mordekhai, B.B., 507, in the name of R. Meir of Rothenberg. It seems that Asheri, here, is referring to the responsum of R. Meir brought in the Mordekhai when he writes “that is how I decided before R. Meir of blessed memory concerning a case that occurred in Worms…”. R. Joel HaLevi also decided that kofin applies to houses. See Mordekhai, ibid.

39 Resp. Rosh sec. 98, no. 1. For further questions concerning distribution of property between joint owners such as partners and inheritors, and possible differences in law between these two types of joint owners, see Resp. Rosh 97, 2, and compare Maimonides' commentary to the Mishnah Demai ch. 6, Mishnah 8 in the regular editions as compared with Kapah's, and supra n. 16. See too Hiddushei HaRitva B.B. 12b s.v. hahu; Hiddushei HaRashba B.B. 12b s.v. veim tomer.

40 This can easily be seen by the leading cases concerning abuse of rights. The problems concerned spite fences in the United States, the famous chimney case in France concerning the blocking of another's view, the other leading French case concerning the erection of iron spikes so that a neighbour's dirigible would be harmed, and the French and English cases of making noise for the purpose of scaring away game from one's neighbour. These are just a few—but representative—cases. See the literature mentioned in this essay for detailed discussions of the cases brought before the courts in various countries.

41 See Tosafot B.B. 12b s.v. kegon; Mordekhai B.B., 16; Hagahot Maimoniot, Gezela, 3, 9; Or Zarua B.K. chap. 4, sec. 122–123.

42 Resp. Maharik no. 29.

43 See, for example, Mordekhai, ibid.; Or Zarua, ibid.; Hagahot Asheri B.K. chap. 2, sec. 6; Tur H.M. chap. 363, 6; Sh.Ar. H.M. 363, sec. 6 in Rema's glosses; Yam Shel Shelomo, B.K., chap. 1, sec. 16; Resp. Node Beyehuda, II H.M. no. 24; Resp. Shoel U'Meshiv, II, part 3, No. 82; Resp. Torat Emet no. 129.

44 Mordekhai, ibid.; Or Zarua, ibid.; Yam Shel Shelomo, ibid.; Shiltei Gibborim to B.K. 9a in Rif, Vilna edition.

45 See Hagahot Maimoniot, ibid.; Mordekhai, B.K. 16–17; Or Zarua, ibid.

46 See sources brought in n. 44.

47 Sh.Ar., op. cit.

48 Nimukei Yosef, B.K. at sec. 36 in Alfasi, s.v. mai havé.

49 Resp. Node BeYehuda, op. cit.

50 Baba Bathra 59a.

51 Sh.Ar. H.M. chap. 153, sec. 13.

52 Piskei HaRosh, B.B. chap. 3, sec. 72.

53 Tur H.M. chap. 153, 13.

54 Sh.Ar. H.M. chap. 153, sec. 8 in Rema's glosses. See, too, the question posed in Shaar Hamelekh to Sh.Ar. ibid., sub-section 1.

55 Situations similar to the last two mentioned in the text, are, of course, of a universal nature, and for purposes of comparison we shall briefly mention four judgments of Israel's Supreme Court. In spite of the wealth of legal material on this subject which abounds in the sources of Jewish law, in none of these judgments was Jewish law even alluded to (except for the court's mentioning, in the last judgment we will cite, Jewish law's attitude to one's rights to the air space above one's land). In Fisher v. Sofer (1962) 16 P.D. 410, the question concerned the right of the Fishers to place their gas balloons and part of the gas pipe on the outside wall of the Sofers' apartment. Both sides lived in the same building, and the opinion of the majority of the court was that even the outside walls belonged solely to the Sofers. Hence, there was undoubtedly a technical trespass on the Sofers' property. But, sitting as a third instance, the Supreme Court allowed the Fishers' appeal and denied the respondents any right to remove the balloons and pipe. Berenson J. weighed the almost non-existent inconvenience and the complete lack of any monetary loss on the part of the defendants against the real harm that would be caused to the appellants if they could not place the balloons on the ground leaning against the respondent's property. Similarly in Radomilsky v. Friedman (1971) (II) 25 P.D. 523 the Supreme Court decided that even though the rule of law is that one owns the air space above one's land, the stretching of a television wire through the air space of another was not deemed to be trespass. Sussmann D.P. denied the appeal basing his reasoning also on the fact that no real harm was caused to the appellant by the respondent's actions. But these “trespass rights” have also been rejected by Israel's Supreme Court. In Shelev v. Naveh Hararei Moav (1967) (I) 21 P.D. 617 appellant was denied a right to use the defendant's land as a shortcut to the main road even though the appellant had a pressing economic need to do so and the respondent did not prove any actual loss to himself if the appellant would be allowed to so use the property. In the fourth case, a right to interfere with another's property was also denied, but this time with a heavy heart. Here, in Bezalel v. Simantov (1975) (I) 29 P.D. 41, the respondents had a large family and wanted to build an extra room which would jut out over the appellant's garden and would also diminish the light entering the appellant's flat. Even though the court very much sympathized with the respondent's real needs in having to accomodate a family of six, it had to take into account the rights of the appellants who had ample cause to oppose the respondent's plans. After weighing the needs of the respondents against the rights of the appellants, thecourt reversed the District Court's decision and forbade the respondents to jut out and encroach on the airspace of the appellants.

56 Kiddushin 20a.

57 Tosafot, Kiddushin 20a s.v. kol.

58 Almost all of the discussions about using another's property against his will, by applying kofin, concern land. A. Lichtenstein has already discussed, at length, the seemingly contradictory rule of kofin and the Talmudic statement that “he who borrow's without (the owner's) knowledge is a thief”, and attempts to reconcile the two. (See Lichtenstein, A., “Towards an Understanding of Coercion over Sodom Qualities” (1972) 1 Hagut Ivrit Be-Amerika 362 at 372–373Google Scholar). We will therefore not delve deeply into this question. See too, Resp. Bet Ephraim H.M. no. 49.

59 See Maimonides, Hilkhot Shekhenim chap. 7, sec. 8; Baba Bathra 7a; Resp. Nahmanides no. 83; Nimukei Yosef B.K. to Alfasi 8b in the Vilna edition of the Talmud; Resp. Maharashdam H.M. no. 409; no. 464.

60 Resp. Radbaz vol. I, no. 146. Another interesting point made by Radbaz in this responsum is that the lessor cannot raise the rent claiming that the tenant is now leasing improved, more valuable, property, since it was the lessee who paid the expenses for the improvements made.

61 Resp. Maharsham vol. V, no. 5. But cf. Rashbam B.B. 104a s.v. kofin et hamokher. See, too, another responsum of Rabbi Shvadron (ibid. vol. II, no. 268) who explains the law which appears in Sh.Ar. H.M. chap. 162, sec. 6 within the context of kofin.

62 Yam Shel Shelomo, B.K. chap. 9, sec. 33.

63 Baba Bathra 99b–100a.

64 See Rashbam B.B. 99b s.v. amai; Nimukei Yosef to Talmud B.B. ibid. s.v. garsinan.

65 Tosafot, B.K. 20b s.v. ha.

66 Resp. Maharashdam no. 409.

67 Resp. Torat Emet no. 129. Cf. Resp. Bet Ephraim H.M. no. 49. On first glance it may seem that this respondent allows forced exchange of property, but a careful reading of his words show that this is so only when there is an honest presumption that the property owner does not mind the exchange. If he protests, the barter may not be made against his will. See too B.M. 101a and Maimonides, Hikhot Gezela chap. 10, sec. 9; Resp. Radbaz vol. VI, no. 2,256.

68 See supra p. 54. See too, Magen Avraham to Sh. Ar. O.H. chap. 365, sec. 3, sub-section 7; Tur Sh. Ar. O.H. chap. 368, 18; Sh. Ar. O.H. chap. 368, sec. 9.

69 Resp. Maharik No. 9.

70 Mishnah, Yebamot chap. 4, Mishnah 11.

71 Yebamot 44a.

72 Meiri to Yebamot, ibid.; Resp. Tashbez, Part IV, sec. 1, no. 27.

73 Meiri, ibid.

74 Resp. Maharik no. 112.

75 Resp. Radbaz Part I, no. 283.

76 Chapman v. Honig [1963] 2 All E.R. 513; 2 Q.B. 502. See, too, Catala, Weir, op. cit., supra n. 3, at 235–236, 257.

77 See supra pp. 53–54.

78 Maimonides, Hilkhot Sekhirut chap. 7, sec. 8.

79 Sh. Ar. H.M. chap. 318. Cf. Resp. Rema no. 60—two different opinions of R. Meir Isseries and R. Shlomo Luria.

80 Resp. Radbaz vol. II, no. 1002 (573).

81 Resp. Maharashdam Y.D. no. 219. See, too Mordekhai B.M., 232; Resp. Binyamin Zeev no. 442.

82 Resp. Maharil Diskin p. 108, no. 240. See too Resp. Rashba vol. II, no. 43; Resp. Ezrat Yisrael H.M. no. 109.

83 Resp. Maharik no. 29. It appears that, at least in the American cases concerning spite fences even though the builder of a fence to spite his neighbour has a reasonable grudge against his neighbour, the court will order him to remove the fence or pay damages. See Sundowner Inc. v. King, 509 P2d 785. For a general survey of the law concerning spite fences see 133 A.L.R. 684–720; American Jurisprudence 2d., “Adjoining Landowners”, secs. 106–117.

84 Resp. Havat Yair no. 186.

85 Resp. R. Meir of Rothenberg, Prague-Budapest, no. 39.

86 Shilo, S., “On One Aspect of Law and Morals in Jewish Law: Lifnim Mishurat Hadin” (1978) 13 Is.L.R. 359 at 389.Google Scholar