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Shabbat Parashat Shemot| 5765

Pninat Mishpat

Compensation for One Who Bought a House that was Smaller than Listed - Based on Piskei Din - Rabbinical Court of Yerushalayim - vol. II, pp.101-3
Case: Reuven sold an apartment to Shimon for a given price. In the contract, it says that Shimon inspected the apartment and found that it suited his needs and that he checked the Land Registry to see that there were no outstanding legal issues connected to it. Shimon now complains that he bought the apartment at the agreed price because of its total area, as spelled out in the Land Registry. Only after buying the apartment did Shimon calculate that the listed area of the apartment was overestimated by 40 sq. meters. He, thus, demands that the amount of money he overpaid should be returned.
Ruling: The mishna (Bava Batra 103b) says that if one sells his friend a field, which he stipulates is the size of a beit koor, and it is less than that, the seller must return the difference in value between a field the size of a beit koor and this one. Different explanations are given as to why the sale is valid despite the misrepresentation of its size. The Magid Mishna (on the Rambam, Mechira 28:5) offers one explanation that since the overpricing does not relate to the estimation of the field’s monetary value, the sale stands, while the extra payment is returned. The Magid Mishna does bring an opinion that in this case, that the inaccuracy is based on an objective scale such as measure, the buyer can nullify the sale, and here we are talking about a case where he waived his right but demanded to be compensated for overpaying.
 In theory, our case might have been compared to that of the mishna, enabling Shimon to make a good claim that Reuven should return money. Had Reuven presented the sale as that of a sale of a plot or an apartment of x meters and it turned out to be 40 meters less, then it seems that he would have a claim. But Reuven never made an issue of the exaggerated size. Rather, it was Shimon who said that he was relying on information that he saw himself at the Land Registry. It is also pertinent that in the contract and in the attached sketching of the apartment, no mention is made of the total area of the apartment, making it difficult to claim that the price was based on a mistaken appraisal.
[Editor’s note- Review of the Land Registry file is usually done after negotiations are more or less complete and are intended to avoid legal complications, not in order to determine the apartment’s value. Also, in contrast to a field, where the size is the major factor in setting the price, an apartment’s value is much more dependent upon how that space is arranged into useful living quarters for the buyers. Thus, even if the area had been stressed in the negotiations and money would have to be returned, it probably should not have been estimated proportionally.]
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.,
Yitzchak Eliezer Ben Avraham Mordechai Jacobson o.b.m.

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