When driving a car one sees the car in front of him that has a three year warranty. (Forgetting the fact that every time we drive a car we advertise the car manufacturer without receiving any com- pensation.) In this lesson and the next lesson we shall IYH be discussing the laws of warranties in halacha.
In halacha, the seller of an item is held to warrant title to the item he sells unless he specifically states that he is not warranting the title to the thing sold. The warranty may take various forms.

When buying real estate, the buyer should order a title search that will help him to avoid many of the pitfalls of this lesson. There are times when the title companies also make mistakes and that is when title insurance comes into play. We shall assume that no such title insurance was ordered. The buyer knows the seller well and believes the seller when he says that he is the true owner of the real estate. He further believes the seller when the seller says that he does not have any outstanding debts. Lets examine two situations.

(i) Reuven, a seller of real estate, sells a field to Shimon, the buyer, for $800. Reuven may warrant that if Shimon loses the field that he bought to anyone who has title to the field superior to Reuven's title, then Reuven will reimburse Shimon for the loss of the field. Levi sues Shimon to recover the field, pleading that the field was really his and did not belong to Reuven. Levi proves his case in Beth Din and Shimon loses the field to Levi; Shimon can now recover his loss from Reuven under the warranty.

(ii) Assume that Reuven is the true owner of a field. On January 1, Yehuda lends $1,000 to Reuven to be repaid on March 1. There are witnesses to the loan and a note of indebtedness is written evidencing the loan and the note is signed by two witnesses to the loan. This note of indebtedness created a lien (mortgage) on the field in favor of Yehuda, and should Reuven not pay the $1,000, Yehuda can seize the field to recover the $1,000. On February 1, Reuven sold the filed to Shimon for $800. On March 1, Reuven does not pay Yehuda the $1,000. Shimon does not have the $1,000 to pay Yehuda to protect his purchase. Yehudah may ask Beth Din to take the field from Shimon and give the field to Yehuda.

In both of the foregoing paragraphs, Shimon is out $800 and does not have the field. Shimon sues Reuven to recover the $800.

If a deed of real estate does not contain a warranty, it is deemed to be an error of the scribe or lawyer who wrote the deed, and thus every deed will be deemed to contain a warranty against loss of the property to a third person. Shimon, who bought the property from Reuven may lose the property in one of two ways: as in example (i) above to Levi the true owner of the property; or as in example (ii) above, to Yehuda, a creditor of the seller.

There are three types of warranty, each stronger than the other.

(1) The weakest warranty is that the seller will not commence any lawsuit to recover the real estate from the buyer.

(2) Stronger than that is the warranty that the seller's creditor will not seize the field from the buyer.

(3) The strongest warranty is a general warranty that the buyer will not lose the field to any person, whether a creditor or a person alleging superior title to that of the seller.

In the text below, these warranties shall be referred to by the aforestated numbers. Many of the laws described in these lessons can be avoided by each of the parties seeking competent lawyers to protect their respective rights.

As stated above, every sale of real estate is deemed to contain a warranty from the seller, Reuven to the buyer, Shimon, against the thing sold being taken from the buyer because of an act of omission or an act of commission by the seller. In sales of personal property the only warranty is against the true owner of the person property retrieving it because it was stolen by Reuven. This warranty is implied in the sale even if not expressly stated; omission of an express warranty in a deed of sale or bill of sale is deemed to be the scribe's error.

If Reuven, the seller of a field to Shimon, the buyer, specifically undertakes warranty 1, above, he does not warrant 2 or 3. Thus if Shimon loses the field to Yehuda a creditor of Reuven, or to Levi, a person having superior title to the field to that of Reuven, Reuven does not have to reimburse Shimon for such loss. If Reuven undertakes warranty 2, he has also automatically undertaken warranty 1 as well as 2 but not warranty 3. If Reuven undertakes warranty 3 he has automatically undertaken warranties 1 and 2 as well as 3. Thus it may be correct to state "under warranty 3" if Shimon loses the field he purchased from Reuven to Yehuda, a person who was a creditor of Reuven and had a lien on the field, or to Levi, a person from whom Reuven stole the field, Shimon can make a claim against Reuven for reimbursement for the loss of the field and also for expenses.

Shimon can recover from Reuven under the warranty only if he loses the field to either Levi or Yehuda as a result of a judicial proceeding in a Beth Din. The same applies to those situations in which Shimon buys personal property from Reuven that Reuven had stolen from Levi. If Levi, through a judicial proceeding in Beth Din against Shimon. has the personal property restored to him, Shimon may recover from Reuven for the loss.

We shall IYH continue the topic of warranties 1, 2, and 3 in halacha in the next lesson.

The subject matter of this lesson is more fully presented in Volume VI Chapters 225 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

[The Parshat B'chukotai Homepage]
[The TORAH tidbits Homepage] [How to use TORAH tidbits]
[About The OU/NCSY Israel Center] [About TORAH tidbits]
[www.ou.org]