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based on ruling 74082 of the Eretz Hemdah-Gazit Rabbinical Courts

Disappointment with Arba Minim Sales Provisions – part I


Beit Din Eretz Hemda - Gazit

Nissan 10 5782
Case: [We will deal with this case’s two elements of dissatisfaction separately.] The defendants (=def) are, respectively, suppliers of arba minim (def2) and the organizer of a "buyer’s group" (def1) to rent the courtyard of a public building (=buil) for over a dozen stands for selling arba minim for three years. There were four empty locations for Sukkot 5774, and def1 raffled them to others. The plaintiffs (=pl; pl1 & pl2 are friends who made a joint claim) won and rented locations for 3,500 NIS for one buying season plus a 500 NIS fee for advertisements (members of the group were exempt from that fee). Pl lost money on the sales, which they blame on def. Def1 provided a map of the premises with 17 sales points. In fact, there were 18, as "the infiltrator" (=inf) operated #18 and an illegal stand on the sidewalk in front of the courtyard; the latter sold at least 100,000 NIS of merchandise. Pl hold def1 responsible for enabling inf to operate in both locations and not telling buyers about them, as inf received electricity from buil, and def1 did not agree to call the police as pl1 requested. Also, def1 added an extra table to his stand on the last day, which prompted inf to start a "price war" that lowered revenue. The claims, for each pl, are: 1,000 NIS due to #18; 5,800 NIS for the sidewalk location; return of the 500 NIS for advertisement, as it was wrong to charge only the four non-group renters. Pl1 admits that he should have told renters about location 18, but explained that he agreed to prevent inf, who has connections with buil, to obtain the whole area, which would have enabled him to raise stand prices. He claims that for years there has been a sidewalk stand, operated by a criminal, so that pl1 who worked there previous years, should have known. Def1 had no way of knowing that the criminal would rent it to inf, or that inf would make improvements. About the price war, all were invited to bring an extra table for the last day, and he is not responsible for inf’s actions.

Ruling: Def1 admits the rental was done with misinformation (about #18). However, it is unlikely that pl would not have rented locations had they known of one extra seller. Claims of moderate overpaying do not apply to real estate (Shulchan Aruch, Choshen Mishpat 227:32), but they do apply to quantitatively fallacious representation. However, if one said he was selling 100 units and he sold 99, we do not void the sale, but make the seller provide the additional unit. Even if we believe pl that they wanted to back out, since they could not do so because they already bought merchandise, we cannot void the sale. Therefore, we should apply the following halacha: One who sold meat under the presumption that it came from a castrated ram and it came from a non-castrated one, the seller must return the price differential. We estimate the differential is 500 NIS per location, as flooding a market can cause more than proportional damage.

Regarding the illegal location, pl1 should have known from past experience. Pl1 brought in pl2, and therefore we should assume that he also knew. Additionally, pl were offered to read the contract between buil and def1, which hints at the existence of intruders. Therefore, the sidewalk stand was an "open blemish," for which one may not claim misinformed consent (Ketubot 75a).
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