Mortgage by father of the bride: gift or loan?

Father takes NIS 1 million mortgage for daughter bride's apartment. Couple's now divorcing and dayanim must decide: was money gift or loan?

Eliran Aharon,

Loan or gift?
Loan or gift?
iStock

On the eve of a couple's marriage, the bride's father mortgaged his apartment and gave the sum of one million shekels to the couple as help in purchasing an apartment.

It was verbally agreed they would repay the bank mortgage in his place every month.

Later, the couple's relationship ran aground and they divorced. In the divorce agreement with the rabbi of the community where they lived it was agreed the apartment purchased by the two would be sold and after repaying debts the apartment would be divided between the husband and wife.

At this stage, the husband petitioned the Rabbinical Court claiming the million shekels were given to the couple as a wedding gift as aid in purchasing an apartment, and therefore he is not obligated to return it. The woman claimed, however, that the funds were given as a loan and must be repaid from the amount received from the sale of the apartment. With both parties' consent the father was added to the claim, as he is actually the plaintiff.

Tiberias Regional Rabbinical Court members Rabbi Chaim Bazak, Rabbi Shlomo Shoshan, and Rabbi Yinon Boaron sat for long hours querying the husband, wife, father, and the community rabbi who formulated the divorce agreement. During the interrogation it became clear that the father had sold his apartment, took the money he received and gave it to the couple and then bought a new apartment with a mortgage.

Ultimately the dayanim were required to decide whether the million shekels were given as a loan to be returned or as a non-refundable marriage gift. To this end, dayanim used halakhic sources throughout history from Shulchan Aruch, Choshen Mishpat and the Rama through Rishonim and Acharonim to the contemporary judges who serve today in rabbinical courts.

The three dayanim reached the same conclusion, but the judges differed in their reasons leading to it. In summing up the verdict, the rabbinical judges, Rabbis Bazak, Shoshan, and Boaron wrote: "The court determines that the amount the parties received from the father of the woman was a loan and therefore the plaintiff's share in this loan shall be returned."


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