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Shabbat Parashat Miketz 5782

P'ninat Mishpat: Did the Owner Exhaust his Opportunities? part I

(based on ruling 80065 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) was in debt a few hundred thousand NIS for years. Hotza’ah Lapo’al (the enforcement arm of the court system) carried out a public auction to sell pl’s apartment (a converted storage room with multiple building violations), with a large part of the sales proceeds going to creditors. The defendant (=def) had the winning bid (1.12 mil. NIS) in 11/19, a purchase confirmed by the courts in 01/20, after pl failed to convince them that he would be able to pay the debt in another way. Soon after the court’s final approval of the sale, pl found a donor to reimburse def for the purchase of the house. Def said that he would consider returning the apartment, but then refused, saying that the person who financed the purchase already sold property to make it possible. Pl demands the apartment back with the following claims: the price paid was ona’ah (unfairly low); as the owner, pl had the first right to buy the property from the court (dina d’bar metzra); def cannot back out of his oral agreement to undo the sale (mechusarei amana): pl’s mother, who does not owe money, is the apartment’s true owner.


Ruling: We will deal with different issues each week of presentation.

The claim that pl’s mother owns the apartment – that is not something we can incorporate into this decision. Pl’s mother did not join these proceedings as a litigant, and therefore her claims (or her son’s claims in her name) are not able to be considered. Additionally, we have not been shown any documentation that indicates the claim is true, and pl himself has acted as if he owns the property. Finally, that matter was already presented to the courts. If the courts did not place a restraining order on the sale of the apartment, which a different court already approved, we do not have grounds to disqualify the purchase. Of course, if the courts ever accept the claim that pl’s mother is the true owner, the basis for the sale by Hotza’ah Lapo’al will presumably be undone.

The claim that def agreed to undo the sale – If one orally agrees to a sale without an act of kinyan and then backs out, there is a grievance against him known as mechusarei amana (lacking credibility) (Choshen Mishpat 204:7). However, that is a moral claim, not one that beit din enforces (Shut Ra’anach 118). Furthermore, def claims with confidence that he only said that he would consider if it could be done. If that is the case, and pl did not bring any evidence that it is not, then there is not even an oral agreement on this matter, and these are not grounds for even a moral obligation.

Pl claimed that by def giving the impression he would agree to undo the sale, he prevented pl from bringing his new offer to the koness nechasim (appointee of the court for bankruptcy cases). There is no evidence and little logic that the koness nechasim would have acted differently after the courts finalized the sale to def, according to his recommendation. Additionally, there is no evidence that def deceived pl. Even if these things would have occurred, such damage would be no more than gerama (indirect causation) and not grounds for action by beit din in this case.

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