MAẒRANUT

MAẒRANUT (Heb. מַצְרָנוּת; "abutter"), the right of preemption available to the owner of land over the abutting land of his neighbor, when the latter is sold. The rule is not a provision of strict law but is derived from a rabbinical enactment to compel any prospective purchaser to yield to the abutting neighbor, in terms of the Pentateuchal injunction to "do that which is right and good in the eyes of the Lord" (Deut. 6:18; see also bm 108a and Rashi ibid.). For the other prospective purchaser does not sustain a great loss, since he will find land elsewhere, and should not burden the abutting neighbor with property in two separate localities. The right of the maẓran ("abutting neighbor") is a proprietary right (in rem) in the neighboring land itself (Nimmukei Yosef bm ibid.), similar to the right of a creditor in the case of lien or mortgage and other jura in re aliena. In applying this enactment, the scholars did not impose on the purchaser a duty to resell the land to the abutter, but rather endowed the abutter with the right to receive the land on the conclusion of the (putative) sale – without any additional act of acquisition being required – the purchaser thus becoming the agent of the abutter in regard to all the conditions of the sale to which the former agreed. Accordingly the purchaser is subject to all the laws governing an agent and holds the land in question on behalf of the abutter, the latter only acquiring actual title to it if and when he pays the price paid by the purchaser and fulfills the remaining terms agreed by the purchaser. As the abutter's right originates from the purchaser's obligation to "do what is right and good," if the latter is a non-Jew – to whom the obligation is not applicable – the corresponding right will also not accrue to the abutter (Rashi to bm 108b). The abutter also forfeits his preemptive right if he had indicated, by speech or conduct, that he does not wish to avail himself thereof (Sh. Ar., Ḥm 175:32).

The abutter's right or preemption, being an application of the equitable principle to "do what is right and good," is a flexible right (Resp. Rashba vol. 1, no. 915) and does not prevail where it is not supported by the factors of "right and good." Thus the law of maẓranut does not apply if the exercise of the preemptive right would cause loss to the seller or purchaser or any loss to the public in general, or if the abutter were to derive no benefit therefrom. Consequently, the law of maẓranut is not applicable to a gift (bm 108b) as the recipient cannot get another gift in its stead and he would therefore suffer a loss (Ran, Kid. 59a). For the same reason the right of preemption is precluded when the purchaser is a woman since "it is not fitting for her to search in many places." Nor does the right exist in the following cases: when the purchaser is a co-owner of the land together with the seller, or if he is the mortgagee, for a sale of the land to such parties invokes the factors of "right and good" in their own cause; when the coins offered by the purchaser are of greater weight or more marketable than those offered by the abutter, for here the seller would lose; when all the seller's assets are sold to a single purchaser, lest the sale as a whole is prejudiced; when the landowner sells a distant field in order to purchase one that is nearer, or when the land is sold to defray funeral expenses or taxes or to provide maintenance for a widow, or when an orphan's land is sold, for in such cases the seller would suffer if he waited for the abutter. Furthermore, an abutter who wishes to cultivate the land must yield to a purchaser who wishes to build a house there, as public interest prefers habitation. Similarly, the preemptive right is excluded whenever its exercise would cause a loss in any other manner to the seller or purchaser, provided only that the judge is satisfied that there is no evasion of the abutter's right (ibid.).

The law of maẓranut is mentioned neither in the Mishnah nor in the Palestinian Talmud, but only in the Babylonian Talmud by the amoraim of Babylonia. It may be assured that in Ereẓ Israel conditions were not such as to justify the application of the preemptive right on the equitable ground of doing "right and good." The scriptural injunction teaches that the standards of proper conduct between man and his fellow are determined in accordance with the prevailing circumstances of the time and place and the scholars applying it created different rules accordingly (Maggid Mishneh to Maim. Yad, Shekhenim concl.). In post-talmudic times the right of preemption was customarily applied (in France, Germany, Spain, and in the Orient) and, in many places, also in relation to buildings even though it is doubtful whether the law was so extended in the talmudic period (Piskei ha-Roshbm 9:34). In modern times the law of maẓranut has been less and less frequently applied although the rabbinical courts of the State of Israel have given several decisions in which various problems have been determined in accordance with these laws.

In the State of Israel the law of maẓranut was abolished by the Israel Land Law, 1969.

bibliography:

M. Bloch, Das mosaisch-talmudische Besitzrecht (1897), 59f.; et, 4 (1952), 168–95; M. Silberg, Kakh Darko shel Talmud (1961), 105–110. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:137, 142, 163f., 345, 346, 513f., 653; 3:1364, 1604; idem, Jewish Law (1994), 1:155, 160, 182, 184f., 415, 416; 2:625f., 808; 4:1627, 1913.

[Shalom Albeck]