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Shabbat Parashat Ki Tavo 5775

Pninat Mishpat: Backing Out of a Now Unneeded Unfinished Sale

(based on Shut Chatam Sofer, Choshen Mishpat 102)

Case: Reuven “sold” (i.e., received money, did not deliver goods) silver utensils to Shimon. It was known and mentioned at the time of the payment that he did so in order to buy a vat needed for whiskey production. After the money was paid but before Shimon took the utensils, Reuven’s brother died, and Reuven inherited such a vat. May Reuven refuse to go through with the sale (i.e., give the silver utensils) but instead return Shimon’s money?


Ruling: According to the letter of the law, Reuven can back out, since the performed only an act of kinyan kesef (payment of money), which does not create a final sale of metaltelin (movable objects) (Shulchan Aruch, Choshen Mishpat 198:1). This is true even without special circumstances.

The question is just whether there is a mi shepara, a curse of sorts against one who backs out of a sale after money has been paid. When an event occurs that makes it not worthwhile for a buyer or seller to go through with the sale, there are opinions that the moral problems of backing out do not apply (see opinions in Rama, CM 204:11).

The Shulchan Aruch (CM 207:3) rules that one may back out of a sale when the situation upon which he had stated that the sale was predicated does not come about. The Rama (ad loc.) says that this applies only to the sale of land, not to movable objects, but the Shulchan Aruch does not seem to make that distinction. Therefore, a seller can say kim li (I follow) the Shulchan Aruch’s opinion. The logic behind the distinction is that it is more common for a person’s sale of land to be predicated solely on his plan to move, whereas it is more common for people to sell metaltelin for any number of reasons. Therefore, a stronger language of linking the sale to the circumstances is necessary.

One can distinguish between one who sells while saying “if such and such happens,” as opposed to selling “because such and such” is expected. Only “if” relates to a situation of conditional transaction. Even if Eliyahu Hanavi will come and tell us that the seller intended for a conditional sale, it makes no difference, considering that “matters that remained in one’s heart” do not count, unless there is clear understanding that a condition was intended. This, for example, is how we can rely on the questionable intentions of the participants in the pre-Pesach sale of chametz to a non-Jew.

The Rishonim cited by the Tur (CM 207) disagree regarding the extent to which assumptions about the seller’s intention have an impact on the sale of metaltelin. The Derisha says that they differed regarding to what extent we are confident about the parties’ intentions. If we were truly unsure about the seller’s intention, we certainly would not allow unspoken matters to play a role. Even if Eliyahu would tell us what his intentions were, it would not make a difference. Rather, the question is how we assume Chazal would relate to such a case.

In our case, the seller, who articulated that his reason for selling the silver was to buy the vat, certainly cannot be compelled to go through with the sale.

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