This week’s article is the second instalment on utilizing lots in halachah. Can lots be used, upon joint agreement, as a tool for determining division of an estate, or is it a halachically forbidden form of “rolling the dice”? Can one of the parties change his mind once the results are in? Can the laws of lots be derived from the biblical division of the land? How is a halachically binding lot conducted? Can a din Torah be settled by drawing lots if both parties and the Dayanim don’t know how to settle the matter? Of this, and more, in the coming article.
The basic question we must first answer is how appropriate it is to employ casting lots to settle business dealings. Are lots a Torah-endorsed method which can be derived from the way Hashem divided the Holy Land, or is it similar to using random choice methods which are forbidden by halacha? The basic halacha relevant to this discussion is: “Asmachta lo kani”. An asmachta, which is a conditional commitment or promise that a person makes but actually has no intention of keeping, is not a valid form of acquisition. Therefore, Chazal view gamblers as rabbinically-defined thieves because they take money which others didn’t really mean to give them. Since every gambler put his money down on the table thinking he’ll win the gamble, when another person wins and takes the money, it is considered a rabbinically prohibited form of thievery.
Making decisions by flipping a coin is not a sensible form of decision making. Seemingly, lots shouldn’t be used for division of an estate. On the other hand, in the Torah we find a long list of important decisions that were made based on lots. The previous article dealt with the use of lots for historic decisions. This week we will focus on using lots for division of finances and their halachic status.
May lots be used to divide partners’ assets or brothers’ inheritance? Two brothers who, for example, inherited an apartment, car, investments, and cash but don’t want to be neither partners nor sell the property, and there’s no way to accurately assess the value of their inheritance. Can casting lots be used to divide the assets between them?
In this case, the classic form of division is called “gud oh igud” – one of the brothers suggests a price for the item and offers to buy his portion from his brother for half that price or sell his portion in the item to his brother for the same sum.
Where this form is impossible and there’s no way of reaching agreement, can we lump together a package of assets which is approximately the value of half of the estate, and then cast a lot between the two? Does drawing lots have any halachic effect or can one of the parties back out even after both agreed to cast lots and lots were drawn?
An Act of Acquisition
In order to understand this issue, it is important to understand that according to halacha (Bave Metzia 48a; Shulchan Aruch CM 204) one who reneges on his word in business is dubbed a dishonest person and can be publicly embarrassed. Nevertheless, he is bound to his commitment until an actual act of acquisition has been performed.
The Gemara and Shulchan Aruch list many actions that make an acquisition final, each applying in specific circumstances. Sometimes it is payment, or even a down payment that can seal the deal. In others writing up a contract, lifting an object, exchanging something for the object that is being acquired, is required. One of the forms of acquisition is called situmta – whatever is the customary manner of sealing a business deal in a certain area or field. Therefore, where deals involving diamonds are made with saying mazal u’vracha or a handshake, the deal is a binding once a handshake or mazal u’vracha has been exchanged.
If two brothers or partners agree to divide their assists with a lot, is the lot considered a form of acquisition, and whatever the result is, that is the partner’s legal portion?
This issue is not limited to the situation when one of the brothers wants to back down — it also applies when the item increases or loses value or dividends accrue— who gets the difference? Does it go to both brothers or partners since at the time of the increase or loss they were all the legal owners – or does the post-lot owner get it all as a packaged deal from the moment of casting the lot?
The relevant halachos to this case are learned from a halachic scenario in the Gemara (Bave Basre 106b): when the Holy Land was divided between the Tribes, the lot served as the form of acquisition because all the parties agreed to accept whatever would be the results. This allowed the acquisition to be finalized. The Gemara explains: “Rabbi Elazar said: The halacha that applies here is similar to the initial division of Eretz Yisrael among the tribes. Just as the initial division of Eretz Yisrael was carried out by drawing lots, so too here, the brothers may divide their father’s estate by drawing lots.” How is this acquisition validated?
“Rav Ashi said: With the satisfaction that each of the brothers receives from the fact that they listen to each other and agree to accept the results of the lottery, they fully transfer ownership to each other. Therefore, the division becomes final as soon as the first lot is drawn.
Since all the parties gain from this agreement, their satisfaction gives it enough weight to prevent the other parties from backing down. (Dividing an estate is just like dividing up a partnership. In this article we’ll be speaking of brothers, but refer to partners as well.)
Does the Gemara mean that the agreement to draw a lot is a form of acquisition, or does the lot only decide which party may take possession of a specific portion? The Rishonim are disputed on this issue.
According to the Rambam (Shcheinim 2:11), Rashbam (Bave Basre 106b), and others, the Gemara rules that the lot itself is a form of acquisition. Once the lot has been carried out, each of the brothers has acquired his portion and no further action is necessary. Henceforth, none of the parties can cancel the deal and any increase or decrease in value belongs solely to the party who acquired the item in the lot.
However, the Rosh (responsum 98) and others opine that the lot itself is not a form of acquisition. The Gemara only rules that once the lot has been performed each of the brothers has the right to perform an act of acquisition on his item. For example, the brother who got the apartment has the right to change the lock in his apartment and make a kinyan chazaka – a demonstrative act of ownership. Once this type of action is performed by one of the parties, all the parties have acquire their portion. However, in the interim, between carrying out the lot and the first act of ownership, if one of the brothers rushes and revokes his agreement to accept the results of the lot, he has the right to do so, and the lot is cancelled. Additionally, any gain or loss that occurs in this time belongs to all the brothers equally. Therefore, this form of division carries with it the risk that one of the partners will not be pleased with the outcome and revoke his decision at the last minute, before one of the parties has a chance to perform an act of acquisition.
In practice, the Shulchan Aruch (CM 173:2) and the Levush (CM 173:2) follow the Rambam and Rashbam’s ruling that a lot is a full act of acquisition and once lots are drawn each of the parties has acquired his portion. However, the Rama follows the Rosh that a lot does not serve as an actual act of acquisition and additional action is required. The lot only allows one of the brothers the right to perform an acquisitional action and finalize the lot’s results for all the parties. Additionally, if one of the parties changes his mind after the lot was drawn but before any of the parties acquired his portion the entire lot is null and void.
The Shevus Yaakov (footnote 4) and Rabbi Akiva Eiger (glosses on the Shulchan Aruch, ibid) write that although mainstream halacha follows the Rambam, since the great poskim are disputed on this matter, it is impossible to revoke ownership through a lot alone and the property remains in jointly owned by all the parties until an act of acquisition is performed after the lot has been cast.
When the Lot Goes in Effect
The Sma (footnote 34) and Nesovos Hamishpot (Chidushim, footnote 2) write that according to the Shulchan Aruch, once the first lot is drawn, that party acquires his portion. If there are three brothers or more, when the first lifts his lot and acquires his portion, the others have effectively agreed to divide the remaining portion and cannot revoke their agreement and chose a different form of division. However, until the first note is drawn, each of the parties has the right to revoke his agreement and decide he doesn’t want division by lot. Additionally, once the first note is chosen, any increase or decrease in the value of the item belongs to him.
Form of Lot
What kind of lot creates an acquisition? Can an electronic lottery system generate a valid halachic lot, or does it have to be done with physical paper notes? Can it be done by throwing a dice or tossing a coin? Does every lot have to be done exactly just like the division of the land took place during biblical times to have halachic binding?
The Lot to Divide the Land
The Shevus Ya’akov (volume III 162) writes that a lot is effective only if it carries Divine power to convey G-d’s predetermined Will. This is achieved only if it is carried out in the exact same way the lot was used to divide the Land: one ballot contained 12 notes with the twelve portions of the land, and a second with notes listing the names of the Twelve Tribes. The conductor of the lot drew one note from each ballot and announced the results – the Tribe of Judah received the portion from Jerusalem – South, etc.
For a lot to divide an estate in a halachically binding manner it must be done just like the lot that was used to divide the land. One would have to prepare two ballots – one with the names of the participants and another with the items of property being divided. The conductor of the lot pulls a name from the name ballot and another from the property ballot. Then he announces the results – Reuven receives this property; Shimon – that, etc. This kind of lot carries the divine power to properly divide who gets what as the pasuk teaches us: “The lot is cast in the lap, but all his judgment is from the Lord” (Mishlei 16:33).
However, if the lot is used to determine who gets first dibs and who gets second, the results are halachically deemed random, containing no divine message. This lot has no meaning. In this case, the lot does not cause acquisition. Rabbi Akiva Eiger (glosses on the Shulchan Aruch CM 173:2) and Pischei Teshuva (CM 173:2) note this l’halacha.
Property or assets can be divided by a lot to prevent arguments. As Shlomo Hamelech writes: “The lot is cast in the lap, but all his judgment is from the Lord” (Mishlei 16:33). A lot should be performed the same way the Holy Land was divided – matching the results of two ballot drawings.
Since there is a dispute among the poskim if a lot creates immediate ownership or only gives the rights of acquisition with ownership created after the first performance of an act of acquisition, if one of the parties changes his mind before any one of the parties performed an act of ownership, the lot is cancelled. However, once one act of acquisition has been done, all the rest have acquired their portion.
Therefore, as soon as a lot has been performed, one of the parties should immediately perform an act of acquisition such as signing a contract, changing the lock, or lifting an item so the other parties don’t change their minds. Where there is concern that one of the parties might change his mind in the last minute, it is recommended to have a locksmith ready near the door to change the lock as soon as the results are in.
Every lot not performed like the biblical lots does not carry the divine power to correctly determine what belongs to whom. Therefore, when using a lot to determine ownership it should be done in the same way as the biblical lots was performed.
Next week’s article will complete this series and touch upon common scenarios that involve lots – choosing candidates for a position, saying kaddish, state lotteries, din Torah and even life and death situations.