The discussions of the halachik methods of acquisition of real estate and personal property have been completed in the prior lessons laws relating to sales. We shall now begin discussions of matters related to sales other than the methods of how things are acquired.

In Shulhan Aruch Hoshen haMishpat, Rabbi Yosef Karo has a chapter (204) called. "Under What Circumstances Does The Party Who Reneges On an Agreement [of Sale] Receive a Curse of 'He Who Punished'; And When Is He Called 'A Person Lacking Faith?'" As seen from the title there are two distinct ways the party who reneges on an agreement to sell or buy is punished. Albeit the punishment is not by the hand of man, but rather by the hand of the One who controls all hands. This lesson shows that although a person may be in technical compliance with the law, he is still a person who is not admired by G-d and therefore is not to be admired by his fellow human beings.

As is seen in the previous lessons, either party, the seller or buyer, can legally renege and not complete a sale until an act of acquisition has been performed by the buyer, although money has been paid. For example, the seller and buyer agree that the seller will sell his automobile to the buyer for $1,000. The buyer may have paid the entire $1,000, or part of the $1,000, or no part of the $1,000. But until the buyer performs an act of acquisition on the automobile, the automobile does not belong to him and either party may legally renege on the agreement.

The halachah realizes that people should not be permitted to make agreements and then renege on them. The halachah has two methods to treat this type of conduct, depending upon whether the buyer has paid all or part of the purchase price or has not paid any part of the purchase price. It must be realized that these methods are effective only if the person who is involved in the transaction is a person who is concerned that both in this life and in the next life he has to face his Maker. If a person realizes this, his entire conduct in business as well as all of his actions will be tempered with trying to do the right thing in the eyes of God. Reneging on an agreement in business, although technically not binding, is not doing the right thing. The Talmud, Shabbath 31a, quotes a teaching of Rava who said that when man is led in for judgment in the next world he is immediately asked, "Did you deal faithfully with your fellow man?"

One method in treating a person not living up to his word in business is subjecting the person to a curse called "He who punished," and the second method is subjecting that person to being called a person "lacking Faith."

The proper punishment of these two depends upon whether the party withdrew from the transaction before or after money changed hands from the buyer to the seller. The situation where money changed hands but before an act of acquisition was performed is more serious than the situation where no money has changed hands. Ordinarily a person cannot be called names such as a person lacking faith. The name caller may be sued for slander and may have to compensate the slandered person. For Beth Din to permit a person to be called something derogatory is an aberration from all accepted halachic principles.

Thus in the situation where the act of acquisition has not been performed and either the seller or buyer withdraws from the transaction, the law provides no monetary remedy. However, the other party may ask Beth Din to administer the curse of "He who punished."

The seller agrees with the buyer that the item will be sold at its market price, and the buyer paid part or all of the money. The seller does not possess the item to be sold. The seller must acquire the item and deliver it to the buyer according to the then prevailing market price. Should he fail to do so he is subject to the curse. Also if the buyer has made his mark on the item he is purchasing, although no part of the price has been paid, the party who withdraws is liable to the curse.

The party who has not reneged can summon the withdrawing party to Beth Din and the curse will be administered there by the Beth Din. The Beth Din pronounces as follows: "He who punished the generation of the flood [in the time of Noah]; and the generation of the Tower of Babel; and the people of Sodom and Gomorrah; and the Egyptians at the Red Sea; shall exact punishment from whomever does not keep his word."

There is an opinion that the curse is directed specifically to the withdrawing party and instead of saying "from whomever does not keep his word" the judges pronounce "from you [the withdraw- ing party] if you do not keep your word."

The curse is pronounced publicly.

If the item purchased by the buyer and paid for in whole or in part is accidentally destroyed before the buyer performed an act of acquisition the buyer may ask for his money back and he will not receive the curse of "He who punished." This is true even if there are witnesses that the seller could not have saved the object from loss, and that he was not negligent in how he took care of the item.

here is an opinion that the buyer is not subject to the curse if he withdraws from the transaction because he is afraid that the item will become a total loss for him.

Assume that the parties have agreed to sell and to buy and all of the terms have been agreed upon. The buyer has not performed an act of acquisition and he has not paid any part of the purchase price. If one of the parties withdraws, the curse of "He who punished" is not administered but the withdrawing party may be called a person who is lacking faith. The law that applies to sales also applies to gifts. If Reuven promises Shimon a gift and then reneges on his promise, Reuven may be called a person who is lacking faith. There is no legal consequence to Reuven's promise since a promise to give a gift is not enforceable. If Shimon had performed an act of acquisition for the gift, it would belong to him. The foregoing applies to gifts small in size according to the ability of the donor to give gifts, since Shimon has reason to rely on Reuven's promise.

We thus see that the halacha sometimes demands a standard even higher than the minimum requirements of the halachah as it pertains to business.
The subject matter of this lesson is more fully presented in Volume VI Chapters 204 of"A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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