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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 (829)
Various Rabbis
525 - Damages of Delay in Home Construction – part II
526 - Worker’s Benefits
527 - Hallel and Nirtza
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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.
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.
Moreshet Shaul Moreshet Shaul: A Crown and its Scepter – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 294-5
P'ninat Mishpat P'ninat Mishpat: Problematic Lights?
based on appeal of ruling 84085 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Did Any Furniture Go to the Buyer? – part I
based on ruling 84093 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Sharing in Plumbing Expenses – part II
based on ruling 85013 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Return of Down Payment Due to War – part I
based on ruling 84044 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
Lessons
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