Chaim and Zev had been roommates in yeshiva for a number of years. They had purchased, often jointly, many pictures of gedolim to adorn their walls. One of the most beautiful ones was a hand drawing of Rav Elyashiv, zt”l, that was not easy to find anymore.
When the time came to head their separate ways, they had to divide the pictures they had jointly bought. They were able to agree about most of the pictures, except for the one of Rav Elyashiv, which they both desperately wanted, and two other photos.
“I don’t see any way out of this other than a lottery,” said Chaim. “One will get the picture of Rav Elyashiv and the other will get the other two photos.”
Zev was not thrilled about this arrangement, especially since he had found the picture of Rav Elyashiv and suggested that they buy it, but he didn’t have a better way of deciding the issue.
The two cast a lottery and Chaim won Rav Elyashiv’s picture. Zev grabbed the picture, though, and refused to hand it over. “You know that for something to be legally binding there needs to be a kinyan, an act of acquisition,” he said. “A lottery is just a convenient means to help decide but does not carry any legal validity until you take the item. I’m retracting from my agreement to decide by lottery.”
“What do you mean a lottery does not carry any legal validity?” replied Zev. “We often find a lottery is used to determine respective shares, especially between partners. Even Eretz Yisrael was divided by the tribes through a lottery!”
“That was a special case, where Hashem decreed that the Land should be divided through a miraculous lottery,” said Chaim. “That doesn’t mean, though, that a lottery between you and me carries legal weight!”
“But doesn’t our agreement that the division should be through lottery carry meaning?” argued Zev. “What if you had gotten the picture and I wanted to back out? Would you be so quick to say that I could retract?”
Chaim stood silent for a moment. “I would certainly feel upset,” he acknowledged. “But I guess that you would have the legal right to retract if you insisted.”
“What’s the point of a lottery, then?” said Zev. “It doesn’t make sense. Once the lottery is cast – it’s over! Please give me the picture.”
“I’m not giving it until we speak with Rabbi Dayan,” said Chaim. “I wonder what halacha has to say about this.”
“Agreed,” said Zev. They walked over to Rabbi Dayan’s beis medrash.
“We agreed to divide our joint gedolim pictures by lottery,” explained Chaim. “Zev now refuses to honor the lottery and give me a picture of Rav Elyashiv. Is a lottery legally binding?”
“We find, regarding the division of Eretz Yisrael to the tribes, that a lottery has legal consequence,” said Rabbi Dayan. “Although there were additional factors there, such as the urim v’tumim, since the two partners are mutually interested to divide in this manner, any lottery carries validity.” (B.B. 106a)
“Does that mean that after the lottery I already own the picture?” asked Chaim.
“Whether the lottery itself confers ownership is a dispute between the Rishonim,” answered Rabbi Dayan. “The Rambam, cited by the Shulchan Aruch, rules that the lottery confers ownership; thus, Zev has no the legal ability to retract. The Rosh, cited by the Rama, however, maintains that the lottery just determines the shares. It enables each party to posses his respective share without explicit permission from the other, but does not confer ownership until the party makes an act of acquisition on his respective share. According to this opinion, Zev is able to retract until you acquire the picture.” (C.M. 173:2)
“Who is the halacha in accordance with?” asked Zev.
“Shevut Yaakov [3:162] considers the issue unresolved,” replied Rabbi Dayan. “However, Maharsham [3:186] rules in accordance with the first opinion that the lottery confers legal ownership. He adds that if there was a formal kinyan sudar beforehand to divide based on the lottery, or the two parties signed a contract to that effect, the lottery would certainly confer ownership.” (Pischei Choshen, Shutfim 3:72)
“What about a lottery that does not determine shares, but only the order to choose?” asked Chaim.
“That kind of lottery certainly does not confer legal binding to the order,” responded Rabbi Dayan, “since it is not similar to the division of Eretz Yisrael. Here the lottery does not even clarify the shares and certainly does not confirm ownership. Therefore, either party has the legal ability to retract [Pischei Teshuvah 173:2].
“I must add, though, that even where there is a legal possibility to retract it would usually be considered untrustworthy and morally reproachable.” (C.M. 204:7)
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to firstname.lastname@example.org. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail email@example.com.
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