Mr. Feder lived just behind a shul. Since the road wound around his large property, people coming to shul on Shabbos would often take a shortcut through his property. The through traffic did not bother Mr. Feder, as his house was on the other end of the property, so he never made a fuss.

One day, Mr. Feder decided to build a fence. He left himself an opening on the side adjacent to the shul, but planned to enclose the remainder of the property.

As the posts were put in place, the president of the shul asked Mr. Feder, “Would you consider also leaving an entrance on the street side, where the shortcut to the shul is?”

“No, I’d like to complete the fence,” replied Mr. Feder. “Once I’m investing in the fence, I’d like to do it properly.”

“But people have been accustomed for years to cut through your property,” said the president. “For some people, walking around your property means an extra seven minutes.”

“It’s my land; I can do what I want,” responded Mr. Feder. “I’ve been nice about it until now, but that doesn’t mean that I owe the public anything.”

“But the Gemara (B.B. 100a) teaches that a person may not ruin a pathway that the public possessed,” replied the president. “This is phrased as ‘Meitzar shehecheziku bo rabbim assur l’kalkelo.’ Since you’ve allowed the public to posses the pathway for the past few years, you’re not allowed to ruin it now!”

“Who says that rule applies here?” said Mr. Feder. “Maybe it’s only when the public officially possessed the path? I never gave people formal rights to walk through the property. At most a handful of people actually asked me whether it was okay. The rest simply trespassed!”

“But you saw them do it and never protested in any way, so you acquiesced to them having this right,” argued the president.

The president had Mr. Feder summoned to Rabbi Dayan’s beis din, asking that he be restrained from fencing the public passageway.

After a brief deliberation, Rabbi Dayan issued the ruling: “The members of the shul cannot restrain Mr. Feder from completing his fence.”

“Why is that?” asked the president.

“The law of meitzar shehecheziku bo rabbim is explicit in the Gemara and codified in the Shulchan Aruch” (C.M. 377:1; 417:2), explained Rabbi Dayan, “but there are numerous limitations on the practical application of this halacha.

“First, there is a dispute among the Rishonim about whether tacit acquiescence through silence suffices or if explicit permission of the owner is required.

“Second, there is a dispute about whether it suffices that the public simply walked through, or if there is need for some construction to enhance the passage.

“Third, the public through traffic must be such that the owner would normally protest such an intrusion. However, if the area is not developed anyway or if the public traffic does not interfere with the owner, so that he had no reason to protest their usage of his property, their chazakah of walking is not valid if they did not do construction.

“Fourth, the fact that a group of people used the land as a shortcut does not determine them as ‘public,’ unless they form a large percentage of the people for whom this passageway was relevant (Chochmas Shlomo 377:1).

“Fifth, some authorities maintain that if the owner has rights officially registered in the land authority, we do not presume mechilah on his part only by walking, if the public did not do any physical improvement to the land (Pischei Teshuvah 153:3; Maharsham I:5; III:376).

“Therefore, on account of five reasons mentioned,” concluded Rabbi Dayan, “Mr. Feder can fence his property even though it will block the passageway to the shul. He never explicitly granted this right; the public never did any physical improvement; he had no real reason to protest previously; the shortcut was used only by a select group; and his property rights are listed with the land authority (see Pischei Choshen, Nezikin 8:32[79-84]).”

Q: I have seen advertisements alerting people to make sure that their wills conform to halacha. Why does a standard legal “Will and Testament” form not suffice?

A: Generally, a transfer of property requires a kinyan (proprietary act). In absence of a kinyan, the property remains in the possession of the original owner (C.M. 241:1). When a man dies, his halachic heirs (primarily his sons) inherit his property. For instance, a father cannot demand that his sons share their inheritance with his daughters and wife, since upon inheritance the property is the sons’.

In limited circumstances there will be a mitzvah to fulfill the wishes of the deceased (l’kayem divrei hameis). Consequently, if one wishes his estate to be distributed in a manner that differs from the halachos of inheritance, it is necessary to distribute that property with a proper kinyan while he is still alive. For a better understanding of this matter, we present a brief synopsis of several aspects of determining the validity of a will.

Chazal enacted that a deathbed bequest (matnas shechiv meira) transfers ownership of property even in the absence of a kinyan out of concern that the dying person may become distressed that his last wishes will not be carried out. This enactment does not validate a will that is drawn up while a person is healthy. A will uses language indicating that the property is being transferred after death, whereas a deathbed bequest compares to a gift that transfers the property (C.M. 250).

According to most Poskim, secular law’s recognition of a person’s right to bequeath his possessions to whomever he chooses has no bearing in halacha (C.M. 369:11; see Igros Moshe, E.H. 1:104). Moreover, a will cannot affect a conventional kinyan (situmta) since it indicates that the property transfers after the owner has passed away, but once a person passes away he cannot make an effective kinyan and has relinquished control to his sons who inherited the property (Achiezer 3:34).

A will is, in fact, conceptually similar to the construct of mitzvah l’kayem divrei hameis (C.M. 252:2). It is generally necessary to deposit the designated property into the possession of a third party for this construct to apply in order to assure that the benefactor is serious about giving the gift. One who has a will drawn up by a lawyer also demonstrates that he is serious regarding his intent to transfer ownership of his property and thus it should be binding (Achiezer 3:334, 4:66; Minchas Shai 75; Cheishev HaEphod 2:106). Some disagree with this approach (Kovetz Teshuvos 3:225; Pischei Choshen Yerushah 4:[85]).

Even if one chooses to follow the approach of mitzvah l’kayem divrei hameis, if the heirs refuse to follow the wishes of the deceased and the matter is presented to beis din, besides the ill will that will be generated, it will likely be necessary to reach a compromise, and the benefactor’s intent will not be carried out.

Consequently, if one wishes for his estate to be distributed in a manner that differs from the halachos of inheritance, it is necessary to have it done in a halachically valid fashion.

Q: I threw out a pile of branches to be collected by the sanitation department. If the branches got scattered and someone tripped over them, am I liable?

A: A person cannot free himself from liability for an obstacle (bor) by renouncing ownership (hefker), whether he placed the obstacle there or it fell there through his negligence. However, if the obstacle fell there through circumstances beyond his control, e.g. it was blown by an extremely strong wind, the owner can renounce ownership of the obstacle and exempt himself from subsequent liability (C.M. 412:1; 411:2).

Therefore, if you piled the branches carelessly, you remain liable. If you piled them carefully and they were scattered by a strong wind, you are exempt since you have no interest in maintaining ownership (see Pischei Choshen, Nezikin 8:[9]).

A person who was walking carefully and tripped is not considered negligent. Therefore, if something he was carrying broke or spilled when he fell, he can exempt himself of legal liability by renouncing ownership of the broken pieces. However, a chiyuv b’dinei Shamayim of grama remains if he could have cleared the obstacle away and did not do so (C.M. 412:4; P.C., Nezikin 8:[12]).