Shabbat Parashat Chayei Sarah | 5770

Hemdat HaDaf HaYomi: Cancelling a Sale (83b)

This week in the Daf Hayomi the Mishna (83b) deals with the question of when a sale can be cancelled on the basis of the claim that the merchandise turned out to be different from what was agreed upon. The Mishna differentiates between a case where the merchandise was of the same kind agreed upon, but only of a different quality, and a case where the merchandise turned out to be totally different. In a case where the difference is solely in quality, only the party who was negatively impacted may cancel the sale. However, if he wishes to accept the sale despite the difference in quality, the other side may not cancel the sale. However, in a case where the merchandise turned out to be completely different, both sides may cancel the sale.

For example, if the buyer agreed to purchase high quality wheat, and the wheat turned out to be of poor quality, the buyer may renege on the sale. If the buyer wants the wheat despite the poor quality, the seller cannot renege. However, if the buyer agreed to purchase wine and the wine ended up being vinegar, both sides may renege on the sale, and, even if the buyer wants the vinegar, the seller may renege.

Until now we spoke of cases where the merchandise turned out to be different from what was agreed upon. What happens when the merchandise was as agreed upon, but the price was not appropriate for the merchandise? We learned in Baba Metzia (50b) that when there is a difference of more than a sixth between the price agreed upon and the real value of the merchandise, then the sale may be cancelled. The question is, is this case similar to a difference in quality, and only the losing side can renege, or is it similar to wine and vinegar and both sides may renege.

The Tosafot (Baba Metzia 50 d"h ve'ilu) quote two opinions regarding this question. The first opinion claims that a price difference of more than a sixth is considered to be so extreme, that it is similar to a case where the merchandise turned out to be totally different, and both sides may renege. However, the opinion of the Rivam is that only if the losing side demands a return on the price difference may the other side renege, while if the losing side wishes the sale to remain, the other side may not renege. In his opinion, a difference in price is similar to a difference in quality of the merchandise.

Rabbeinu Yona (Baba Batra 84a d"h vetana) has an intermediate opinion regarding this issue. He claims that as long as the losing side has the option to renege, the other side may renege as well. However, if the losing side has already expressed his wish that the sale stand, or if the time period which he has to renege, because of the price difference, has passed, then the other side cannot renege.

Summary and Ruling:

The Shulchan Aruch (Choshen Mishpat 227, 4) rules like the Rivam that in a case where there is a difference of more than a sixth between the real price and the price agreed upon, then only the losing side may renege on the sale. The Remma, however, quotes the opinion of Rabbeinu Yona that initially both sides may renege, but if the losing side has already expressed his wish that the sale stand, or if the time period to renege has passed, then the other side cannot renege.

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