We continue to discuss conditions in sales because this is a very important topic in the usual conduct of most people when they buy (or sell) a house or an apartment. They want to be bound by the terms of the contract, but there are certain conditions that must be satisfied before they become bound. Or else they want to get out of the contract if certain conditions occur. The best thing of course is to have your lawyer put these conditions in the contract, and that will avoid lots of grief and aggravation. There are some lawyers who are not mind readers, so please, tell him what's on your mind regarding the purchase (or sale). Very often the unstated condition is the happening of an event, which because of circumstances beyond the control of a party does not occur.

Very often there is an implied condition in an agreement. By "implied condition" is meant that the condition is not explicitly stated as a condition that must happen to make the sale effective. But the reason for the sale is known, sometimes because the reason is explicitly stated and sometimes because the reason, although not stated, is apparent. The question facing Beth Din is whether the reason will become a condition.

The laws of implied conditions applies to sales of realty and not to sales of personal property. I have set forth the same laws for the seller and the buyer. There are authorities who hold that these laws only benefit the seller but do not apply to the buyer, that the buyer must make his purchase expressly conditional, and conditions will not be implied from reasons he gives for the purchase and certainly not if he remains silent about the reason for the purchase. I have treated both laws alike, that of implied conditions of the seller and the buyer.

Reuven, the seller, or Shimon, the buyer, may make the transaction conditioned upon certain stipulations being fulfilled. For example, the seller may stipulate that his house is sold on condition that he will move to California within three months; or he may stipulate that he is selling his house on condition that he is able to use the money he receives to invest within three months in the shoe store that he is negotiating to buy. If the move to California is not completed within three months or the shoe store is not sold to him within three months, the sale of his house is not effective. Or Shimon may make the purchase of Reuven's house conditioned upon his finding a job within three miles of the house within three months, and if he does not find such a job, the purchase of Reuven's house is not effective. In these cases the sale of Reuven's house or the purchase of Shimon's house is expressly conditional.

There may be times when the condition is not expressly stated, but the reason for the sale or purchase is stated. For example, when the sale is made the seller may explicitly state that he is selling his house in New York so that he can use the money to move to California to find a job there and buy a house there. Or that he is selling his house so that he can invest in a business opportunity. The sale was not specifically conditioned upon the seller finding a house or work in California or finding the business opportunity. There was just his statement of the reason for the sale. A buyer may state that he is buying a house so that he can move in there because he is going to work in that community.

Here, too, he did not make the purchase conditioned upon his finding employment where he buys the house. In such situations, the halachah deems the sale to be a conditional sale subject to the fulfillment of the implied condition, that the seller is able to move to California, or find a business opportunity in which to invest the money he receives from selling his house, or that the buyer is able to find a job where he is moving.
Beth Din will take judicial notice that the seller or the buyer gave a reason for the sale or the purchase and this purpose has been frustrated. Judicial notice means that beth din says that this fact is very obvious to all and this was what was intended. Beth din will treat the reason as a condition and the sale is thus one on condition and if the condition does not happen, the sale is not effective.

Since there is failure to realize the stated goal, the sale is undone and the seller re- obtains ownership of the property sold and he must give the buyer back his money. The reason for the failure or frustration of the stated goal is not important. It is the failure to obtain the stated goal that is equivalent to the failure of an explicitly and correctly stated condition. The attorneys should provide that the party who makes the condition will use his best efforts to make the condition happen. He will use all his contacts and abilities to obtain the job in California, etc.

Since the possibility exists that the stated goal will not be realized the purchaser may not in the interim derive profits from the house. For if the goal is not realized, the transaction will be undone and the buyer will benefit from the profits of the house resulting from the seller holding his money; the buyer thus has the equivalence of interest on his money and this is halachikly illegal.

The only exception to the enforcement of implied conditions is a change of heart on the part of the seller, if he is the one who gave the reason for the sale, or the buyer, if he is the one who gave the reason for the sale. It is the duty of beth din to ascertain if there is a change of circumstances, no matter what type of change, or merely a change of heart. In the latter situation, the sale will not be undone. When Beth Din determines that there are implied conditions arising from the reasons given for the sale or purchase, there is no necessity for complying with the above- stated criteria for conditions. Here the Beth Din takes judicial notice of the purpose of the sale or purchase.

However, when the conditions are not directly related to the purpose of the sale or purchase, beth din does not take judicial notice of the conditions. In this latter situation, without the conditions being expressly stated and complying with the criteria, there is no way for beth din to contemplate that the sale of purchase is conditioned upon such stipulations.

There may be situations where the seller (or the buyer) does not even give the reason for his sale (or purchase). Will Beth Din imply a condition in any such sale (or purchase)? Ordinarily Beth Din will not in such situations find that there is an implied condition, and the transaction will proceed as if it is unconditional. The fact that the party proves to beth din that he really had a certain reason in mind is not controlling. Furthermore, even if some time prior to the sale the seller (or buyer) told people that he was selling (or buying) because of a certain reason it will not be deemed an implied condition since it was not stated at the time that the act of acquisition is performed. There may be an exception, and the beth din may take judicial notice that the reason now given by the seller (or buyer) is so overwhelmingly correct that it is obvious for all to see that the sale (or purchase) was because of the reason he now gives. The reason will be treated as an implied condition.

The subject matter of this lesson is more fully presented in Volume VI Chapters 207 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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