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Shabbat Parashat Nitzavim Vayeilech 5774

P'ninat Mishpat: Backing Out of the Sale of Wine Due to Non-Payment

(based on Shut Shoel U'Meishiv I:I:213)

[Reuven bought from Shimon ten barrels of wine for 300 rubles. The deal was documented in writing and the two shook hands on the matter (which by accepted convention serves as a kinyan). In the course of eight days Reuven did not pay despite the fact that Shimon asked him to pay a few times a day. Finally, Shimon decided to sell the wine to Levi, who agreed to pay 40 rubles more for it. Now, Reuven is ready to pay, and the question is whether Reuven’s purchase still stands, or whether it was voided due to late payment.]

 

Even when a valid kinyan is performed, if the payment is not made right away despite the seller’s repeated request, the sale is not complete (Bava Metzia 78a). On the other hand, the gemara says that if the seller sold something that he has an interest to get off his hands quickly, the sale is not voided even if the seller was aggressive about receiving payment. The Shvut Yaakov (II:148) says that wine is a commodity which we assume a seller feels pressure to sell quickly because of the possibility that it will begin turning into vinegar.

This appraisal of wine might be contradicted by the gemara (ibid. 77b), which talks about one who bought chamra and paid almost all its price but aggressively pursued that which was left. The gemara concludes that even if he pursued only the small remainder, it invalidates the sale. The question is what chamra is, as that Aramaic word means donkey and means wine. Rashi says it is a donkey but some others say it is wine, and according to the latter, we see that wine is treated like any other commodity, whereby the sale can be voided under the said circumstances.

However, one can deflect the proof, since the discussion there is about a case in which there is only a small amount of money that was unpaid. Under such circumstances, since very little could be returned, one would not be concerned about it starting to spoil, and the regular rules would apply to the wine even if it would not normally do so. 

In any case, the Shvut Yaakov is difficult because he was talking about a case where the wine was already transferred into the buyer’s barrels. In such a case we say that the buyer cannot complain about the wine souring as it is possible that his vessels caused the spoilage (see Bava Batra 97b-98a). Therefore, the seller should not be nervous about the buyer being able to back out.

In the final analysis, since the buyer did not pay and the seller was aggressively seeking payment, the seller can back out. He thus had the right to sell the wine to the second buyer.
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