- P'ninat Mishpat
(from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)
Case:The plaintiff (=pl) and the defendant (=def) signed a zichron devarim (a preliminary but binding sales contract) stating that def was selling a plot of land to pl. Pl paid def $80,000 as a down payment. While Levi was the land’s owner in the Land Registry, the zichron devarim stated that def had exclusive rights to buy the field from Levi. This was false, and Levi actually sold the land to someone else. Pl is suing def based on two complaints: 1) for causing pl to believe that def had the ability to buy the field on his behalf; 2) for not taking the necessary steps to acquire the field. Def responded that pl knew that he could not ensure purchase of the plot for pl and that since Levi tricked him, he is not to blame for not securing the purchase.
Ruling:Since pl asked for and was granted a three-way meeting with Levi, it is quite clear that he knew about the legal status of the land and that def’s assertion he could obtain the land for pl was based on trust. It is strange that def signed a document that mentions that he had legal rights. Nevertheless, under the circumstances, that is not a sufficient indication that def tricked pl.
P'ninat Mishpat (663)
243 - Laying Off a Worker During Pregnancy
244 - Laying Off a An Unauthorized Sale
245 - Returning Tuition When a Student Was Expelled – part I
Rabbi Akiva Eiger (Shut I:134) says that the seller’s obligation applies only when the seller deceived the buyer into thinking he owned the item. He says that it also applies only to movable objects, apparently because they can be bought anywhere, whereas specific land can be bought from only a single owner. The Netivot Hamishpat (60:10) says that the seller’s obligation begins only if and when the item enters his possession, as one cannot be obligated in something that is beyond his capabilities. Rav Shlomo Kluger (to Choshen Mishpat 60:6) says that there is an obligation to obtain it, but not if there are extenuating circumstances, including that the price went up significantly in the interim.
According to all the opinions we have seen, pl cannot hold def responsible for his failure to secure the sale on his behalf.