Shabbat Parashat Bo 5773

P'ninat Mishpat: Laying Off a An Unauthorized Sale

Case: The plaintiff (=pl) and the defendant (=def) signed a zichron devarim (a preliminary but binding sales contract) stating that def was selling a plot of land to pl. Pl paid def $80,000 as a down payment. While Levi was the land’s owner in the Land Registry, the zichron devarim stated that def had exclusive rights to buy the field from Levi. This was false, and Levi actually sold the land to someone else. Pl is suing def based on two complaints: 1) for causing pl to believe that def had the ability to buy the field on his behalf; 2) for not taking the necessary steps to acquire the field. Def responded that pl knew that he could not ensure purchase of the plot for pl and that since Levi tricked him, he is not to blame for not securing the purchase.

Ruling: Since pl asked for and was granted a three-way meeting with Levi, it is quite clear that he knew about the legal status of the land and that def’s assertion he could obtain the land for pl was based on trust. It is strange that def signed a document that mentions that he had legal rights. Nevertheless, under the circumstances, that is not a sufficient indication that def tricked pl.

We will now deal with the question of whether def had an obligation to see the sale through. There are sources that indicate that if one “sold” something that was not in his possession, he is obligated to obtain the object on behalf of the “buyer.” The gemara (Bava Batra 59b) says that if Reuven sold Shimon land and two date trees when he did not have the trees, he should buy them on Shimon’s behalf. The Rashbam (ad loc.) explains that this is so he should not be considered “lacking in trust,” i.e., it is not an enforceable obligation. The Nimukei Yosef indicates that he has a full obligation. It appears from the Rif that he is not obligated to obtain the trees and that the gemara means that if he obtains the trees, the buyer cannot void the sale due to its apparent inefficacy at the time of the agreement. The Rambam (Mechira 22:3) says that if one sells a commodity at its standard market price, he is required to obtain it for the buyer at that price. While the Beit Yosef finds Talmudic precedence to support broad application of this concept, he understands that the Rambam refers only to commodities that are readily available in the market at a stable price. The easy access makes it considered as if it was in the seller’s possession.

Rabbi Akiva Eiger (Shut I:134) says that the seller’s obligation applies only when the seller deceived the buyer into thinking he owned the item. He says that it also applies only to movable objects, apparently because they can be bought anywhere, whereas specific land can be bought from only a single owner. The Netivot Hamishpat (60:10) says that the seller’s obligation begins only if and when the item enters his possession, as one cannot be obligated in something that is beyond his capabilities. Rav Shlomo Kluger (to Choshen Mishpat 60:6) says that there is an obligation to obtain it, but not if there are extenuating circumstances, including that the price went up significantly in the interim.

According to all the opinions we have seen, pl cannot hold def responsible for his failure to secure the sale on his behalf.

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