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Shabbat Parashat Beha'alotcha | 5768

Backing Out of an Almost Completed Sale

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Question: I am selling my car. A friend connected me with Reuven, who expressed serious interest in buying at the price I quoted without seeing it. However, the completed sale depended on a few things. I have to find another car; he has to see the car and have it tested. The expectation was that these things would work out. In the meantime, a good friend, to whom I not only prefer to sell, but who also offered me more money, wants it. Am I obligated to sell the car to Reuven?

Answer: After making a kinyan (act of finalization), one cannot back out of a transaction. If the buyer gave money for the object without making a valid kinyan, he can back out, but a curse-like process called a mi shepara is applied if he insists on doing so (Bava Metzia 44a). When neither took place, there is a machloket in the gemara (ibid. 49a) whether an oral commitment binds the parties based on a concept of mechusarei amana (lack of trustworthiness). The Shulchan Aruch (Choshen Mishpat 204:7) rules that one is morally bound to complete the sale (see sources cited in Pitchei Choshen, Kinyanim 1:(2), attributing a moderately strong level of severity to the matter).

It is doubtful whether your friend’s offer makes a difference. The Rama (CM 204:11- see commentaries’ discussion, ad loc.) cites two opinions whether mechusarei amana applies when the object’s going price goes up after the time of the agreement. However, when the price is the same but the seller just gets a better offer, the matter is more problematic (see Pitchei Choshen ibid.:(5)). The Chatam Sofer (Shut, CM 102) says that when the entire desire to sell was based on a lack of information, one is not bound by mechusarei amana. However, a case where one did not know that a friend wants to buy the car is not comparable to a case where the entire sale proved unnecessary. However, there are other factors involved.

Halacha deals with two fundamental elements of a transaction. First, there must be a clear decision to make the transaction. Second, legal steps are taken to finalize the matter, preventing people from backing out. The gemara (4th perek of Bava Metzia) and the Shulchan Aruch (CM 204) discuss differences in the steps of finalization, oral commitment being the weakest. However, when even the decision was not at the point of certainty that a transaction could be completed, there is no halachically meaningful commitment to uphold. What are signs of lack of certainty?

Regarding a mi shepara, the Shulchan Aruch (ibid.:6) seems to require that the final price was set in order for the sanctions to apply. The same appears to be the case for mechusarei amana (Pitchei Choshen ibid.:2). Regarding mechusarei amana when one promised a small present and no longer wants to go through with it, B’tzel Hachochma (V, 158) says that when the matter depends on a condition that the party cannot fully control, the required definiteness that creates mechusarei amana does not exist. Some distinctions that are cited there are hard to apply to our case, but in general we say as follows. It is possible (you are more aware of the details than we are) that you would not find a car quickly enough to accommodate the buyer, making the matter like a condition that negates mechusarei amana. Furthermore, since the potential buyer did not see or test the car, it is difficult to call the sale decided upon, even if your car is in good shape. He could decide he doesn’t like it. At the very least, the price quoted was not fully meaningful, as even when two parties are certain they will go through with a car sale, blemishes affect the final price.

It is wonderful that you are concerned with the appearance or feeling that you are not acting in good faith, and you can take that into consideration. However, according to your description of the case, halacha does not seem to mandate (to any degree) you to sell the car to the first person.




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This edition of Hemdat Yamim is dedicated in loving memory of

R ' Meir ben Yechezkel Shraga Brachfeld


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