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Requirement for the Seller to Fix the Situation


Rabbi Daniel Mann

Tamuz 19 5775
Question: I bought an apartment from the project’s developer’s brother. My lawyer did not discover that the project’s building permits were incomplete. Now, the municipality is "making noise" about kicking out the residents and/or allowing us to stay with limitations. I have tried to smooth things with the municipality but have not yet succeeded. The developer has the best chance of getting the municipality to complete the permit after the fact, and the seller, who admits he did not tell me of the problem, can make him to do it. The seller says that it is uncertain that anyone can get the permits, but that if people act wisely, the municipality will not evict us. (He points out that he still has an apartment in the project, and many who knew of the problem bought). He is willing to buy back the apartment but not take action. Can I force him to fix the situation?

Answer: This case undoubtedly contains many unclear elements, which require either a settlement or adjudication in beit din, but we will address your main inquiry in general terms.
Fundamentally, a sale is the transfer of an object from the ownership of one person to another, as opposed to obligating the seller to give or do something for the buyer. Thus, the seller has a good point, when refusing to take a course of action, despite the flaws in the property and his behavior. Rather, the buyer’s general recourse regarding purchases that turn out to be seriously flawed is to nullify the sale (see Shulchan Aruch, Choshen Mishpat 232:3).
Some sources do indicate that the seller is required to act to fulfill the buyer’s basic expectations from the purchase. For example, there is an opinion that if one made a purchase before a document was written but pledged to write one, he can be forced to write it and cannot opt to nullify the sale (Shulchan Aruch, CM 243:9). The Imrei Yosher (II:52) explains that the document is part of the process of the purchase.
However, these sources are quite different from your case. For one, there the buyer pledged to write the document. Here, even if (we do not know) the seller said or implied the property had a complete permit, he did not pledge to take further steps to get it to that point. If he gave a false picture of the present situation, there may be grounds for nullifying the sale, but not to force him to take the action you desire. Second, in the case of buying property second hand, dealing with building permits is not part of the sale process (when buying from the developer, the contract usually states what his legally required steps are).
The Rosh (Shut 96:6) says that if one buys an object with a flaw that can nullify the purchase, the seller can, under certain circumstances (see Shulchan Aruch and Rama, CM 232:5), say that he is willing to fix it rather than allow the purchase to fall. Our question is the opposite situation: can the buyer say: "Rather than have to nullify the sale, I demand of you to fix the flaw." The Ulam Hamishpat (ad loc.) understands from the Rosh that he can demand that the seller either fix the problem or reduce the price so the buyer can. However, some Acharonim (including Lev Meivin, CM 144( disagree. I believe that the latter opinion is correct. Realize also that the Rosh says (Bava Batra 5:14) that a seller who overcharges by enough that the sale can be nullified cannot be forced to return the overcharging if he prefers to cancel the sale. Similarly, the Shulchan Aruch (CM 232:4) says that a seller can opt to nullify a sale rather than reduce the price due to the flaw. The Ulam Hamishpat is also clear that he is only referring to cases where that which needs to be done is readily accomplished. In fact, even if one promises as part of a sale to do something, he can only be forced to do so if it is readily accomplished (see S’ma 209:23).
Therefore, in your case, it does not appear that you can compel the seller to take complicated steps that may or may not rectify the situation, although there may be various claims that can be made on him.

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