Case: The defendant (=def) agreed to buy etrogim from the plaintiff’s (=pl) orchard at a price of 18 NIS a piece from grade C and above. Five harvests were done involving etrogim for def, and regarding the fourth and fifth, def refused to take any with the claim that too many of them were only grade C, against what had been promised. There were 2,100 etrogim that def refused to take, and pl succeeded in selling only a small portion of them. Def points to the phrase in the contract that the etrogim will be "to the buyer’s satisfaction." Pl said that this only meant that def had to agree that they were at least grade C, in which case def had to take them for 18 NIS a piece.



Ruling: The sides signed a contract, and there is no evidence that an act of kinyan that works for movable objects was done. Def paid 10,000 NIS, but payment is not a kinyan for movable objects. On the other hand, the contract says that the transaction was on "the tree in regards to its fruit," so that payment should be a valid kinyan for things attached to the ground (Shulchan Aruch, Choshen Mishpat 190:1). Even if the payment was done by bank transfer, that should work as situmta (an accepted way of doing kinyan). According to most poskim, this works even when only partial payment was made (Aruch Hashulchan, CM 190:3, as opposed to S’ma 190:1). In this case, the kinyan took effect only in regard to fruit of at least grade C, which is valid even though it is a kinyan on an object in regard to its fruit (Bava Batra 63a).

P'ninat Mishpat (665)

Beit Din Eretz Hemda - Gazit

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Regarding the meaning of "to the buyer’s satisfaction," beit din accepts pl’s explanation, because it is more logical in the situation in which the sides did not discuss its meaning. In the context of the contract, it was discussing whether the etrogim are marketable or not, and grade C etrogim are definitely marketable.

Def claimed that there is a custom among merchants that buying a crop is conditional on its quality. The expert whom beit din hired said that it is not possible to talk about a custom on a matter like this because it is rare for a person to buy the entire produce of an orchard and leave the work in the orchard in the hands of the orchard’s owner.

Def also claimed that there would be ona’ah (mispricing) if he had to take all the reasonable etrogim because grade C etrogim are not worth 18 NIS, and in this case, their percentage in the crop was too high. This claim is not applicable here for a couple of reasons. First, ona’ah does not apply to land or that which is attached to the ground. Also, there is a machloket whether there is ona’ah when the price is not set at the time the transaction took place (on fruit that had not yet grown) (see Beit Yosef, Bach, and Shach, CM 209:1). Finally, when, along with the possibility of loss, there is also a possibility of great gain, there is also a machloket (Maharashdam 379; Maharshach III:62) if ona’ah applies, and many poskim agree that it does not.

Therefore, def is required to pay for every etrog from grade C and above.