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 Shabbat Parashat Vayigash| 5767P’ninat MishpatCompromise on a Questionable Sale - Based on Piskei Din Rabbani’im - vol. XVIII, pp. 29-36
Case: A school’s representatives signed a zichron devarim (a letter of intent, which, in Israel, has a very strong standing) to sell a dormitory. The zichron devarim allowed for the buyer to back out. The down payment for the sale was given in the form of a check to the buyer’s lawyer to be delivered upon the completion of the sale. In the meantime, the seller decided to back out of the sale. The regional court made a compromise ruling on the matter. Both sides appealed the compromise on different grounds. The following ruling is the majority ruling of the Supreme Rabbinical Court.
Majority ruling: [There are some issues that are specific to this case which we will not discuss in this adaptation.]
Although there are some differences between a zichron devarim and a contract, it is a binding document to sell a property for one of two reasons: 1) It is a legal shtar (document) which is valid to effect a sale of real estate. 2) It works based on the concept of situmta, that whatever is accepted by society as a valid kinyan (act of acquisition) creates the clear meeting of the minds that finalizes a sale.
However, there are two problems with the zichron devarim in this case. Firstly, it did not formalize a final acquisition, but a provisional one. Even though the side that had the right to back out finally agreed, the seller backed out in the meantime. Also, the money was not yet paid to finalize the transaction. Because of these factors, the validity of the transactions in question depends on very complicated halachic questions, which are not resolvable in a clear-cut manner. The main issue is that the kinyan became one of eten, an assurance about a transaction that needs to be carried out later. We will not revisit the halachic intricacies of the matter, which were sufficiently spelled out in the regional court’s ruling.
The question is whether, given that the transaction was questionable, we should say that the seller can claim kim li. Kim li means that the one in possession of the object or money in question can hold on to it based on even a minority opinion. The seller did not make that claim in front of the original court, but they want to make it now and thereby undo the compromise.
It is clear that one can claim kim li at any time, and, in fact, the defendant never has to make the claim, as beit din should do so on his behalf. However, both sides signed an arbitration agreement to accept beit din’s ruling, including that of a compromise. One of the major cases covered by a compromise is that of a dispute among authorities, where a beit din might otherwise be bound to rule based on kim li. Thus, the seller released beit din and allowed it to make a compromise which it felt was more appropriate than employing kim li. Therefore, the regional court ruling stands.
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