Someone Outbid Me After I Put Down A Deposit. Who Has The Right To The Sale? 

 

Rav Baruch Schoss, dayan

1. After much searching, I finally found a cape model home with a finished garage in Howell for $700,000. The seller and I both fully agreed on the price, and we were almost finished Attorney Review, when to my shock, the seller backed out. After some research, I found out that Shimon had offered the seller $750,000, and that’s why the seller was reneging. I immediately called Shimon and asked him to retract, but to my dismay he responded that he really wants a cape model home with a finished garage in Howell and can’t find any others in the area, therefore he isn’t willing to retract unless he’s halachically required to do so. With mutual respect, we both agreed to head over to Bais Mishpat to judicate the case.
2. The Gemara in Kiddushin[1] says: “Oni m’hapich b’chararah u’ba acher v’notlah nikra rasha.” If an impoverished individual tries to obtain a chararah (cracker), and another person intervenes and takes it before him, the latter is called a rasha.

The Sma[2] explains that when the Gemara says he’s “nikra rasha,” it’s literal: a proclamation is made in shul that he’s a rasha.

The nature of this “chararah” is the subject of a disagreement between Rashi and Rabbeinu Tam.

• Rashi: The chararah in question is either hefker[3] or was being presented to the oni as a gift.
• Rabbeinu Tam: The oni is attempting to hire himself out or purchase something.

Rabbeinu Tam explains that if the chararah was hefker or a gift as Rashi holds, there would be no issur in the second person pursuing it. Since the opportunity for a free cracker is hard to come by, he would have equal rights with the oni to attempt to procure it.

(It should be noted that according to Rabbeinu Tam, if the seller is a Jew, there’s another angle that must be considered: M’chusar amanah.[4] That is, if the seller settled on a price with the would-be buyer yet proceeds to sell it to the second individual, the seller transgresses the issur of m’chusar amanah. Hence, the second buyer will not only transgress the issur of oni m’hapich b’chararah, but also lifnei ee’ver on the seller’s m’chusar amanah as well. However, if the seller is a non-Jew or the item’s value increased after the first individual contracted to buy it, there wouldn’t be an issur of m’chusar amanah; this is commonly known as “Trei tar’ei.”[5])

There’s a dispute among the poskim regarding the opinion of the Shulchan Aruch. The Sma[6] and Nesivos HaMishpat[7] maintain that he paskens like Rabbeinu Tam. However, others[8] maintain he agrees with Rashi.

The Rema[9] paskens like Rabbeinu Tam that there’s no issur of oni m’hapich when it comes to hefker or a gift, only a job opportunity that’s snatched or a buy that’s lost.

The Rema[10] adds that the issur of oni m’hapich applies only after the buyer and seller agreed on a price. However, if they’re still in the negotiating stage, there would be no issur. This applies whether the seller is a Jew or non-Jew.[11]

The Shulchan Aruch HaRav[12] and Igros Moshe[13] maintain that although we follow the Rema that there’s no issur of oni m’hapich by hefker or a gift, “a ba’al nefesh should be stringent” and follow Rashi’s opinion that it does apply.[14]

One who follows the Sefardic custom should consult a competent Sefardic posek.

The question arises: According to Rabbeinu Tam, when there’s only one of a certain type of item for sale on the current market, e.g., a six-bedroom house in a location where all other available homes have five-bedrooms, is this detail taken into consideration rendering it competition for a single item and removing the issur of oni m’hapich, or, so long as there are other similar items available, one is not permitted to take away the opportunity from the original bidder?

The Terumas Hadeshen[15] and Binyamin Zev[16] both say that even though there are no six-bedroom houses for sale in this market, because there are five-bedroom houses available, the issur would apply. However, when this is the solitary house available, all agree that according to Rabbeinu Tam it’s fair game for anyone to attempt to purchase it and no issur would be transgressed.

Accordingly, in the above case, being that there are other houses on the market, the mere fact that Shimon can’t find a cape model house with a finished garage doesn’t render it competition for a single item and doesn’t remove the issur of oni m’hapich.

In conclusion: Shimon must back off and allow you to purchase the house not to transgress the prohibition of oni m’hapich b’chararah.

Telling tale

When my grandfather, Rabbi Dovid Grossman, was looking to purchase a home in Los Angeles, it was a very tight market. Suddenly a house came up that seemed to suit his needs. However, after doing some research, he heard that another Yid had already looked at the home. Immediately, he backed off.

The first Yid called him and said, “Let’s ask a dayan together, maybe you’re permitted to take the house.” But to no avail. Rabbi Grossman wouldn’t entertain the idea of buying a house another Yid had looked into.

[1]. 59a.

[2]. Choshen Mishpat 337:1.

[3]. In layman’s terms: ownerless.

[4]. In layman’s terms: a breach of trust.

[5]. Ibid. 204:11; Aruch HaShulchan, ibid. 8.

[6]. 237:8.

[7]. 237:2.

[8]. Mishpat Shlomo 4:28 quotes many sources that concur with Rashi.

[9]. 237:1.

[10]. Ibid.

[11]. The P’rishah (Ibid. s”k 1) goes further, that even if they haven’t come to terms yet, but it’s clear that they will shortly, another person may not intervene. There’s a discussion among the poskim whether the halachah. follows the P’rishah or if the accepted practice has changed. The Igros Moshe (Choshen Mishpat 1:60) paskens like the P’rishah, however, Rav Elyashiv, Rav Nissim Karelitz, and ybl”t Mishpat Shlomo (4:28) say that we do not, and accordingly, one may outbid the first buyer provided the seller and buyer didn’t finalize the price yet.

[12]. Hilchos Hefker V’hasagas Gvul 10.

[13]. Even Ha’ezer 1:91.

[14]. It should be noted that this stringency is only applicable when the potential buyer is indeed an oni (Sma 237:6).

[15]. 340.

[16]. 292.