Bar Metzra – "First Right of Purchase" for a Neighbor
The Torah asserts "va-asita ha-yashar ve-hatov", demanding that we act morally and not just lawfully. Rashi comments that this mandates the meta-legal behavior known as lifnim mishurat hadin - the ambition to act beyond the letter of the law and to waive certain legal rights to ensure moral integrity. Typically, this ideal remains optional – an ethic to be chosen voluntarily - and is not institutionalized as an across-the-board obligation. However, there are certain moral-based duties which are incorporated as part of normative halakha. These duties (known as "kofin al midat sedom" - preventing selfish Sodom-like behavior) apply when one party can service another's need without personal or financial detriment. In these situations (of zeh neheneh ve-zeh lo chaseir), halakha DEMANDS universal compliance.
One such example - cited by the gemara in Bava Metzia (108) speaks of a land which has been placed on the market for sale. The owner has a moral responsibility to sell to the adjacent neighbor - assuming the latter is willing to match the value of the land. By acquiring this land, the neighbor can consolidate his holdings and reach greater efficiency. The seller has nothing to lose by servicing this interest and must allow the Bar Metzra (the owner of the adjacent land) first right of purchase.
KINYAN OR BENEFIT
Though the moral duty was incorporated as a halakhic rule we may still inquire as to the nature of the neighbor's privilege. Is it merely a benefit which can be expressed in his right to demand 'first purchase' and oust alternate clients? Or
Perhaps, the clearest expression of this issue is presented in a dispute between Nahardai and Ravina. Each claimed that the neighbor can waive his privilege; they merely disagreed as to whether an actual act of kinyan is necessary to affect this forfeiture. Ravina did not require an act of kinyan and presumably he viewed the neighbors as possessing a benefit or privilege which could easily be surrendered without a proactive kinyan. Alternatively, Nahardai, who demanded a kinyan
A fascinating gemara in Bava Batra (5a) (at least according to one rendition) may challenge this reading of Ravina. The gemara cites a dispute between two landowners - Ravina and Runia. The latter purchased land near Ravina's property and was threatened with expulsion by Ravina. Rav Safra the posek intervened and prevented Ravina from expelling Runia. Rishonim debate the terms of this dispute and the ultimate resolution of Rav Safra. Tosafot cite an opinion in the name of
Presumably, the debate surrounding this standoff between owner and worker stems from the aforementioned logic. If we view the privilege as a mere extrinsic benefit it should logically apply to the sharecropper who will exploit that benefit. He will consolidate his work by moving resources into position to work jointly on both the owned field and the sharecropped field. Perhaps, Ravina believed that bar metzra is a partial “stake” in neighboring land which may only be available to the OWNER of the adjacent land and not the worker.
Of course, this reading would contravene the reading of the gemara in Bava Metzia which had Ravina viewing the bar metzra clause as a mere extrinsic privilege vulnerable to surrender on the part of the bar metzra without the execution of an act of kinyan. Evidently – at least according to Rav Avraham's reading of Bava Batra – we may be forced to re-examine Ravina's position in Bava Metzia and reassess the ease by which this bar metzra right may be erased.
The Rambam stakes a dramatic position clearly asserting some prior hold for the bar metzra. Based on a comment in Bava Metzia (108a), the Rambam deems the non-adjacent purchaser who 'illegally' acquired the land earmarked for the bar metzra, as the shaliach or agent of the bar metzra. Consequently, the contract of sale (shetar) for this outsider should actually be drafted with the name of the bar metzra even though he has yet to take actual possession. The Rosh adds a clause that when the bar meztra eventually asserts his right and takes hold of the illegally acquired field, he does not have to perform a new act of kinyan since the acquisition of the land by the non-adjacent purchaser was, in reality, performed on behalf of the bar metzra - as his shaliach.
By deeming the non-adjacent purchaser as a shaliach of the bar metzra, the Rambam clearly establishes a prior hold or stake for the neighbor. He does not merely enjoy a “benefit” to oust a foreign purchaser, but actually controls the land – if sold. His hold is so suffocating that any purchase activity performed upon the land by an outsider is legally performed in his agency.
The gemara in Bava Batra (12b) applies bar metzra to division of inherited estates. If a brother purchased land adjacent to one of his father's holdings he has the right to claim that adjacent land in the future division of inherited properties, thereby forcing his siblings to receive alternate lands. The Rashba claims that he may impose the bar metzra privilege provided that the alternate lands are of the same grade as the adjacent inheritance which he claims. If, however, the adjacent inherited land is idit (superior land) and the other lands are inferior (ziburit) he cannot demand the bar metzra privilege - even if their ultimate market value is equivalent. The Ri Migash argues with the Rashba extending bar metzra conditions even to circumstances which would secure superior graded lands to the bar metzra while yielding inferior lands to non-adjacent brothers. This debate may also surround the nature of the bar metzra clause. If it is merely an extrinsic privilege it may apply only if the other brothers do not actually suffer any disadvantage. If, however they absorb some shortcoming even though there is no monetary deficiency, they may not have to yield to this demand. However, if the adjacent brother has actually acquired a legal hold upon the adjacent field he may be able to direct the proceedings in his favor even if he partially victimizes his brothers, as long as he does not impose financial loss.