In last week's lesson we discussed some of the laws of the seller being able to rescind a sale when he claims that he was coerced into selling when he really didn't want to sell. It was stated that there have to be a protest by the seller. What form should the protest take? The protest must be made in the presence of two qualified witnesses and the protest consists of the seller telling the witnesses that the sale he is making is under duress, what the duress consists of, and that he really does not want the sale. The details of the duress must be given to the witnesses so that they may, if they wish, write the details, and also so that the witnesses may later relate the details to Beth Din and Beth Din can decide if the facts warrant the sale to be set aside as being under duress. The witnesses are not precluded from testifying as to the seller's statements of coercion by reason of signing the deed that the seller gives to the buyer. The witnesses can state that they were very pleased to sign the deed to be able to better protect the interests of the seller in that other witnesses might not know that the sale was under protest.

The protest made in the presence of the two witnesses is valid whether or not the witnesses reduce the protest to writing. A protest made in the presence of only one witness is not valid.

There are certain things that the writing evidencing coercion must contain, one of which is the date. However, if a protest reduced to writing by the witnesses is not dated and the seller wants to rely on the written protest signed by the witnesses, the written protest is deemed to be valid, since a protest not made before the sale would not have been written by the witnesses.

If the seller makes such a protest he may later plead in Beth Din that he sold the item, whether real estate or personal property, under duress and asks Beth Din to void the sale.

The lawsuit can be brought even after many years.

If the seller is successful in his lawsuit in Beth Din, he will be restored as the owner of the property, whether personal property or real estate, and he will have to return the payment he received from the buyer. The seller will also have to reimburse the buyer for any improvements that he made to the premises.

There are times when a person makes a gift and he also wants the witnesses to know that the gift is being given against his will. When he makes this protest to the witnesses he need not state that there is coercion applied to him; his statement that he does not intend the gift is sufficient.
If the seller pleads duress, the duress must come from the buyer himself or someone whom he has instructed or hired to coerce the seller. This excludes duress felt by the seller for his own reasons such as being forced to raise money. Duress directed against one's spouse is deemed duress against the person. If the duress was against a member of the seller's immediate family there are those who hold that this is sufficient duress, while other authorities hold that the Beth Din has to decide each case individually.

Not every act of duress alleged by the seller that caused him to sell will be recognized by Beth Din as being of enough con- sequence to invalidate the sale. Beth Din will have to closely examine all the details to determine if it was the kind of duress that will invalidate the sale, since it is really against the policy of an orderly market to permit sales to be lightly set aside. For example, it may well be that there is a threat of coercion when the seller makes his protest to the witnesses, but the threat may not be present when the act of acquisition of the buyer takes place.

The act of duress may be a threat to the person or to his money or property. The threat may by a Jew or Gentile. It may take the form of a physical beating administered to the seller. In the case of threats, beth din must determine if the threats were of such a nature that the seller was really intimidated to sell.

The buyer owes $100 to the seller. On January 1, the seller offers to sell a field to the buyer for $100, and the buyer accepts the offer, the transfer of title to take place on February 1. On January 15 the seller tells two witnesses that the sale is a sham so that he can take hold of the buyer's $100 under the pretense of a sale of the field. There are conflicting opinions as to whether the sale can be set aside.

A not too unusual occurrence in Jewish Gentile relationships. A Jew borrows money from a Gentile without interest. After the debt is due and the Jew does not repay, the Gentile coerces the Jew to include interest in the loan and the Jew consents. The Gentile then sells the loan to a second Jew who wishes to collect the interest. (If a Gentile lends money to a Jew and interest is included in the original loan and the Gentile sells the loan to a second Jew, the second Jew can collect the interest from the Jewish borrower. This assumes that the transaction was not a sham to evade the prohibition of a Jew paying and charging interest to another Jew.) The Jewish borrower pleads that the imposition of interest after the making of the loan was under duress and should not be binding. The borrower will prevail unless it can be shown to Beth Din that the Jewish borrower willingly undertook to pay interest because of some good turn that the Gentile did for him.

Assume a situation where Reuven, by force, took a field belonging to Shimon. Thereafter Shimon sold the field to Reuven without Shimon making a protest. Shimon brings a lawsuit in Beth Din to set aside the sale. Shimon will prevail, although there was no protest made prior to the sale.

Rabbi Moses Isserles in his emendation to Shulhan Aruch states that if the buyer alleges that he bought under duress he can void the sale, if he can prove duress. Many of the later commentaries dispute this holding and state that a buyer cannot plead that he was coerced into buying. Even according to the holding of Rabbi Isserles, the buyer may insist that the sale be held valid if the seller desires to invalidate the sale because he coerced the buyer into buying.

If one pleads that he was coerced into exchanging property for other property, then it is similar to a buyer pleading that he was coerced and the opinions are the same.

The subject matter of this lesson is more fully presented in Volume VI Chapters 205 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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