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Ruling: We saw last time that sel did not sell/rent the physical store, which he was not authorized to do, and was not able to sell the monitin (value of the operation).
Regarding the sale of equipment, standard physical kinyanim were not done. Kinyanim in conjunction with the real estate could have worked had the store been transferred, but it was not. The contract could have worked due to accepted practice (situmta), but two things prevent that. Since according to the law of the land, the whole contract is viewed as supporting a loan agreement, it cannot create a kinyan based on convention for the equipment. Also, since the contract did not work regarding the store and the monitin, it probably does not work regarding the equipment. There is in general a machloket on whether a kinyan regarding different things can work for some and not for others, especially when no distinction is made between one part and another. Therefore, def can hold on to the equipment presently under his control based on those opinions.
P'ninat Mishpat (832)
Beit Din Eretz Hemda - Gazit
641 - Was the Store Already Bought? – part I
642 - Was the Store Already Bought? – part II
643 - Paying for an Unwanted Rental
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Although it is not needed in this case, takanat hashuk apparently would apply because pl had no way of knowing that def had bought anything from sel. Pl went through all the legal processes and while he showed concern not to lose out due to sel’s dealings, it is likely not because he knew of a sale but because he knew that sel was in debt.
Therefore, pl cannot take away st and its content from def’s control.
Beit Din Eretz Hemda - Gazit
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