A Negative Commitment

Question

Rav Nissim bought an
entire apartment block. Of the six floors, three were for his yeshiva and
the remaining apartments he sold to private individuals. About half a year
after all the residents had moved in, he persuaded all
the
residents to sign a document wherein they
undertook not to add to their apartments without the unanimous consent of
all the apartment owners. What prompted him to make this request was his
concern for the continued good appearance of his

yeshiva,
which would be spoiled by haphazard additions. Now he hears that Dovid, who
lives on the fifth floor, is planning to build a balcony on the front of his
apartment without obtaining permission from his fellow residents. Can Rav
Nissim hold him to the signed agreement?


Answer

What we are really
questioning is the validity of an undertaking not to perform a certain act.
The
Emek
HaMishpot
(1:11) writes that if all
that the residents had done was to sign an

agreement
not to build without unanimous permission, this would not have had any
validity even if it were to have been backed up by a

kinyan
(an act of acquisition). The reason for this is that any

kinyan
has to take effect on some substantial item, it otherwise being considered a
kinyan devorim
(a mere form of words). However, in our case all residents accepted a

personal undertaking
not to build independently. It can therefore be argued that since such an
undertaking falls on each individual person involved, it is valid. Each
individual is certainly a substantial item! On the other hand, since the
subject of the undertaking will never have any substance, we could say that
this remains in the realm of a

kinyan devorim.
We have previously quoted the

Oruch HaShulchan
(
Choshen Mishpot
212:2 – see, "Its all up in the air," in this series), who writes that even
though a personal undertaking to sell an item that does not yet exist is
effective, where the subject of the commitment is not substantial it is not
valid. By the same token, a personal undertaking not to perform a certain
act is also invalid. Refraining from action is non-substantial.

The truth is that
there is a major difference of opinion amongst the Halachic Authorities as
to the validity of a personal undertaking to refrain from performing a
certain action. The

To’afos Re’em
(Responsa, Choshen Mishpot, No.6) was asked to rule in the case of two
partners who bought a large shop on the understanding that they would not
compete with each other. They signed a written undertaking not to sell the
same type of goods. One of the two later decided he did wish to enter the
same line of business as the other. Can he be held to the agreement? The
To’afos Re’em
ruled that a personal undertaking to
refrain from action has no validity. For the same reason, the

Divrei Chaim
(
Choshen Mishpot
1:31) ruled that an agreement not to use certain premises as an inn is
invalid. A certain community wished to collect community taxes from the
inheritors of a wealthy member. These inheritors offered to pay a large,
single lump sum in return for a written exemption from future taxation. The
community agreed, but now wished to know whether such an undertaking was
valid. The

Maharashdam
(Responsa,
Choshen Mishpot
370) replied that the community’s
undertaking was valid, just like an undertaking to sell an item which has
not yet come into existence. Since this is a personal undertaking and the
person does exist, the fact that that the subject of the commitment is
non-substantial is irrelevant. The

Perach Mateh Aharon
(
Choshen
Mishpot
1:7) agrees with this opinion. We must therefore conclude that Dovid can not
be restrained from building, since he can always claim that he holds like
those who invalidate the undertaking. However, we would not praise him for
ignoring a signed undertaking that other opinions uphold.