- Sections
- P'ninat Mishpat
Worker’s Benefits
The plaintiff (=pl) planned to buy an apartment in the project being built by a construction company (=def). The municipal planning board approved six apartments, but def decided to break each one into two, which concerned pl. Pl signed a preliminary contract with def, which included a 12,000 shekel down payment to show seriousness and called for the sides to reach agreement on a full contract. Months after the down payment and before signing a full contract, pl decided not to buy the apartment. He is demanding return of the down payment.
Based on ruling 77070 of the Eretz Hemdah-Gazit Rabbinical Courts
Case: The plaintiff (=pl) planned to buy an apartment in the project being built by a construction company (=def). The municipal planning board approved six apartments, but def decided to break each one into two, which concerned pl. Pl signed a preliminary contract with def, which included a 12,000 shekel down payment to show seriousness and called for the sides to reach agreement on a full contract. Months after the down payment and before signing a full contract, pl decided not to buy the apartment. He is demanding return of the down payment.

Ruling: Par. 4 of the first contract states that if the sides do not reach agreement on a full contract within three months, the down payment becomes final (here, more than three months passed). On the other hand, pl included a clause that he can raise objections to the new contract, which def must consider, and that if no agreement is reached on the contract, the down payment will be returned. Def argues that this was intended for cases in which there are unresolved disagreements about the contract, not when pl backs out of the sale for a different reason. In this case, pl mentioned several times that it was the lack of approval of the plans that disturbed him.
Beit din agrees with def’s reading of the contract for two reasons. First, the addition is written in proximity to discussion of the writing of a full contract, implying that the ability to recover the down payment is related to difficulties in this regard. Second, according to pl’s reading, the idea of a down payment to show seriousness has no meaning, as pl can always get the money back. This is neither logical nor does it fit with the language of "without taking away from the above …" It became clear during the hearing that there were disputes about provisions of the proposed contract.
Pl cannot back out due to the lack of planning approval because there are several proofs that he was aware of that problem before signing the agreement and that he knew that this could take a long time to be resolved.
The question that remains is: given that there was not an agreement on a sale, is the promise that the down payment will later become irretrievable a halachically binding obligation or is it an asmachta (an obligation one did not expect to be operative)? According to the Shulchan Aruch (Choshen Mishpat 207:11), if one gives a guarantee payment for a transaction to the seller and the buyer backs out, the buyer does not receive the guarantee back. The Rama (ad loc.) says that he can get it back. The Pitchei Teshuva (ad loc. 13) says that the seller can demand to follow the Shulchan Aruch’s opinion. While the Chazon Ish’s (CM 16:11) opinion on the matter is complex, Rav Daichovski (Lev Shomeiah L’Shlomo, p. 479) concludes that the down payment becomes irretrievable. Part of his rationale is that due to the law that confirms this possibility, the accepted practice impacts the mindset of the participants and makes them serious about the matter.
In conclusion, def does not have to return the 12,000 shekels.
Case: The plaintiff (=pl) planned to buy an apartment in the project being built by a construction company (=def). The municipal planning board approved six apartments, but def decided to break each one into two, which concerned pl. Pl signed a preliminary contract with def, which included a 12,000 shekel down payment to show seriousness and called for the sides to reach agreement on a full contract. Months after the down payment and before signing a full contract, pl decided not to buy the apartment. He is demanding return of the down payment.

P'ninat Mishpat (663)
Various Rabbis
525 - Damages of Delay in Home Construction – part II
526 - Worker’s Benefits
527 - Hallel and Nirtza
Load More
Beit din agrees with def’s reading of the contract for two reasons. First, the addition is written in proximity to discussion of the writing of a full contract, implying that the ability to recover the down payment is related to difficulties in this regard. Second, according to pl’s reading, the idea of a down payment to show seriousness has no meaning, as pl can always get the money back. This is neither logical nor does it fit with the language of "without taking away from the above …" It became clear during the hearing that there were disputes about provisions of the proposed contract.
Pl cannot back out due to the lack of planning approval because there are several proofs that he was aware of that problem before signing the agreement and that he knew that this could take a long time to be resolved.
The question that remains is: given that there was not an agreement on a sale, is the promise that the down payment will later become irretrievable a halachically binding obligation or is it an asmachta (an obligation one did not expect to be operative)? According to the Shulchan Aruch (Choshen Mishpat 207:11), if one gives a guarantee payment for a transaction to the seller and the buyer backs out, the buyer does not receive the guarantee back. The Rama (ad loc.) says that he can get it back. The Pitchei Teshuva (ad loc. 13) says that the seller can demand to follow the Shulchan Aruch’s opinion. While the Chazon Ish’s (CM 16:11) opinion on the matter is complex, Rav Daichovski (Lev Shomeiah L’Shlomo, p. 479) concludes that the down payment becomes irretrievable. Part of his rationale is that due to the law that confirms this possibility, the accepted practice impacts the mindset of the participants and makes them serious about the matter.
In conclusion, def does not have to return the 12,000 shekels.

Disappointment with Arba Minim Sales Provisions – part III
based on ruling 74082 of the Eretz Hemdah-Gazit Rabbinical Courts
Beit Din Eretz Hemda - Gazit | Iyar 2 5782

Aftermath of a Complex Partnership – part III
based on ruling 76096 of the Eretz Hemdah-Gazit Rabbinical Courts
Beit Din Eretz Hemda - Gazit | Iyar 21 5782

A Renter’s Responsibility for an Exploded Water Tank – part II
Various Rabbis | Tishrei 4 5777

Bad Advice Causing Loss of Mortgage Rights – part II
Various Rabbis | Shvat 22 5780

Various Rabbis
Various Rabbis including those of of Yeshivat Bet El, such as Rabbi Chaim Katz, Rabbi Binyamin Bamberger and Rabbi Yitzchak Greenblat and others.

Pay for Imperfect Work
5772

Responsibility for a Failed Joint Investment – part II
Adar 5773

Under What Circumstances Can One Bless?
5771

General Praise Built on Specific Ones
5773

Is Your Kesubah Kosher?
Rabbi Yirmiyohu Kaganoff | 5769
Faith and Trust in G-d's Plan Is Happiness
Rabbi Zalman Baruch Melamed | Tammuz 2 5782

Where is the Limit to Permissible Abortions?
Rabbi Shmuel Eliyahu | Sivan 28 5782

The Halachos of Pidyon Haben
Rabbi Yirmiyohu Kaganoff | Sivan 29 5778
