Friday, 17 June 2011

Fungibility of Z'chut and T'nai Kahal

Originally published 6/17/11, 5:37 pm.
I first encountered this in the Hayyei Adam part 1 17:35 regarding exclusive z'chut to build a Beit Midrash. The HA there cites his source as Ta"z 11 - see below.

HA: If the z'chut is given as an honor, he may not sell it
However, If he paid for it, he may in turn sell it.
Note - No discussion is made here re: if someone were to thwart this z'chut and thwart the agreement. Recourse apparently would be an issue in Choshen Mishpat
Bottom line - we see an intangible right has market value under certain conditions. Here the condition seems to be tied to an investment.

Additional sources:

See SA O"Ch 153:12
Baer Hetev 22 quoting Ta"z 11
MB 76 first quoting the L'vush then the aforementioned Ta"z

Also note that as Per MB there are strings attached to the sale of the z'chut. It's not unconditionally fungible rather "davka l'hagun kamohu."

This seems to imply that a seller - even though he sells something- may reserve rights regarding subsequent sales. In this case, it seems that either public or Halachic interest creates this reservation, and NOT the seller's stipulation.



1. Is the exclusive right to Publish analogous to the exclusive right to Build?

A. Could a Rav Halachically sell exclusive publication rights? Let's say Rav Breuer approaches Philip Feldheim and offers him exclusive rights to PUBLISH his Hiddushei Torah?

B Could Feldheim in turn sell that right?

C. Similarly, could a Kahal Halachically sell exclusive its publication rights to its "Pinkas"?


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