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 Shabbat Parashat Shelach| 5764P’ninat MishpatPenalty Clause for Delay in Completing Land Registry - Part I - Condensed from Piskei Din Rabbani’im XIV, pp. 30-42
Case: The defendants (=def) sold an apartment to the plaintiffs (=pl). The contract states that def will transfer ownership in the Tabu (Land Registry) within a year, and if there is a delay of more than a week, then def will have to pay $10,000. The transfer did not take place by the required time and litigation began. Def explained that they put in the request to the proper authorities two and a half months before the appointed day and that the delay was because the authorities misplaced the file. Does def need to pay pl the sum, in full or in part?
Ruling: The first element we will look into is whether def’s excuse for the delay is a valid one. One can claim that even if there were a bureaucratic delay, had def started the process promptly, there would have been enough time to deal with the problem.
The Rama (Yoreh Deah 232:12) writes: “Someone who swore to do something within a year or on a certain day … if he did not do it right away because he said that he had enough time to do it, and then he forgot or was unable to do it, some say that it is considered an extenuating circumstance (oness), and some say it is not considered an extenuating circumstance.” The Taz (ad loc.), Magen Avraham (OC 108:11) and G’ra (ad loc.) rule like the first opinion, that it is considered a valid excuse despite the fact that he could have taken care of the matter earlier.
We have consulted with experts who say that two and a half months is sufficient time to assume that the paper work would be completed, and so, according to most poskim, def’s excuse is valid. Furthermore, it appears that even the stringent opinion would agree here that def is not to be blamed for the delay. In our case, the day of transfer was purposely delayed in order that def would not have to pay off his mortgage right away. This being the case, we cannot possibly come with complaints to def for not taking care of the matter right away.
There is a possible further reason to exempt def. There is a major question whether such a penalty clause is binding. Cases where someone obligates himself to pay a relatively large sum of money as an assurance that he will carry out his side of the deal are subject to the rules of asmachta. The Shulchan Aruch (Choshen Mishpat 207) generally rules that such obligations are not binding, because the person who obligates himself has no intention to pay, as he expects to do his part. Even if the contract were enforceable in secular court (which is not always the case) that fact does not create a situation where we can consider the asmachta obligation valid based on accepted practice. Since the obligation is made between two Jews, who are required to adjudicate their dispute in front of a beit din, the halacha is that which is binding (Chazon Ish, CM 16:11). Furthermore, even situmta (common practice), which helps overcome certain halachic limitations in an agreement, does not overcome problems of asmachta, which stem from an objective assumption that a person does not expect to pay. [This issue, discussed in detail in the original article, is beyond our scope.]
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