We continue with the topic of warranties started in the last lesson.
A case is cited in the Talmud (Gittin 73a) that is the basis of the law in opening of this lesson. Reuven hired some sailors to transport his cargo of sesame to a certain place. The parties agreed that the sailors will be liable for not delivering the cargo even if prevented from doing so by accidents or other unusual events along the way. The government dammed up the river so that the boat carrying the sesame could not reach its destination. Reuven instructed the sailors to hire wagons to transport the sesame to its destination, and the sailors pleaded that they were not liable under their agreement to do so. It was held that the damming of the river was not contemplated and the sailors did not have to hire land transportation to complete their undertaking.

Getting back to our discussion. Reuven sold a field to Shimon with warranties 1, 2, and 3 described in the last lesson. The government built a dam so that the field Shimon purchased from Reuven no longer has irrigation, or a river changed its course and flooded the purchased field, or there is an earthquake that renders the property unusable.

Reuven has no liability under his warranty even if the warranty is so broad as to cover all types of contingencies. Generally it is not contemplated that these unusual events will occur, and the seller could not have had these in mind even under a very broad warranty. However, if there are circum- stances suggesting that he did have these in mind, it is the task of Beth Din in each case to decide if the occurrence that caused the loss of the property to Shimon was contemplated by Reuven to be covered by the warranty. If the warranty specifically states all contingencies, and adds the words "contemplated or not contemplated, usual or unusual," then all such contingencies are covered by the warranty.

Assume that Reuven, when selling either real property or personal property to Shimon. expressly disclaims any liability that Shimon may suffer resulting from the property being seized by Beth Din on behalf of Yehuda, a creditor of Reuven, or on behalf of Levi, the person from whom Reuven stole the property. The disclaimer is binding on Shimon even if it was known at the time of the sale that Reuven had stolen the property from Yehuda. The parties to a commercial transaction may make any stipulation they desire and it will be binding upon them.

In a reported case of the early thirteenth century, Reuven sold his wine cellar to Shimon with all of its contents. They agreed that Reuven would be liable for any broken barrels found in the cellar, and Shimon will not look to Reuven for damages for any wine that was spoiled. The wine was handled by a Gentile and made ritually unfit for a Jew to drink. The Beth Din held that Reuven was liable under his warranty regarding breakage. This holding is true only in those communities where it was not uncommon for Gentiles to plunder the wines of the Jews. However, if Shimon heard that Gentiles were coming to break into his newly purchased wine cellar and he did not protect himself by hiding the wine, he cannot sue Reuven on the warranty. Shimon could have insisted that Reuven help him move the wine since Reuven is liable on the warranty.

Assume that either Levi, who claims that he is a person who owns the property that Reuven sold to Shimon sues Shimon in Beth Din to recover the property. Or assume that Yehuda who claims he has a mortgage on the property because Reuven owed Yehuda money comes to seize the property from Shimon. Shimon must notify Reuven that Levi or Yehuda is suing to seize the property purchased by Shimon and if Shimon loses the property to Levi or Yehuda, that Shimon will sue Reuven on the warranty that Reuven gave to Shimon.

Reuven, the seller, if he sold the field to Shimon with a warranty, may participate in any lawsuit brought by Levi, who claims to be the true owner of the field, or against Yehuda, who claims that he has a lien on the field because of a debt due him from Reuven. Reuven may have defenses to the lawsuit not available to Shimon. Also Reuven may be a more capable litigant in the lawsuit and may have more facts available to him to win the lawsuit. Or there may be other reasons that Reuven will be successful when Shimon cannot be, such as documents and witnesses available to Reuven and not to Shimon.

Assume that Reuven sells a field to Shimon disclaiming any warranties. Levi sues, or threatens to sue, Shimon to recover the property on the grounds that it really belonged to him and not to Reuven. Reuven seeks to intervene in the lawsuit to protect Shimon from Levi. Levi pleads that Reuven has no standing in Beth Din since he will in no event be liable even if Levi prevails in his lawsuit against Shimon since Reuven disclaimed any warranty to Shimon against the loss of the property.

Reuven may nevertheless intervene in the lawsuit and litigate against Levi. The reason is that Reuven, although not liable to Shimon, does not want Shimon to complain against him to friends.

If Reuven gives the field to Shimon as a gift, (gifts generally do not contain warranties) then Reuven cannot intervene in the lawsuit brought by Levi since Shimon cannot have any complaints against Reuven.

Assume that Reuven sells a field to Shimon disclaiming any warranty and Shimon resells the field to Reuven with a warranty. Yehuda, Reuven's creditor in an action in Beth Din, seizes the field from Reuven. Reuven commences a lawsuit against Shimon on the warranty. Beth Din will dismiss Reuven's lawsuit against Shimon. Although his original sale to Shimon was without a warranty, the sale by Shimon is deemed not to warrant against Reuven's own acts. That is, Reuven cannot be both the seller to Shimon and a claimant against Shimon for a seizure by his own creditors.

Reuven sells a field to Shimon disclaiming any warranties. Although there is no warranty against any third party seizing the field from Shimon, there is a warranty that Reuven himself will not seize the field from Shimon arising from any rights Reuven may have against Shimon at the time of the sale.

When a fiduciary such as a guardian of the property of a minor orphan sells the property of orphans, the fiduciary is not personally liable to the buyer under the warranty, unless he expressly undertakes to be bound.

In these two lessons we have covered a topic that takes up several chapters in Shulhan Aruch Hoshen haMishpat.

The subject matter of this lesson is more fully presented in Volume VI Chapters 225 and 226 of"A Restatement of Rabbinic Civil Law" byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. Questions to quint@inter.net.il

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