THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 172 (part one) • Conditions in Sales & Contracts

We begin with this lesson, a series of lessons that discusses conditions in con- tracts and conditions in sales. The average layman has come across these situations many, many times, without calling them as such. 

(1) I will buy this apartment on condition that the seller will register the apartment with the real estate registry authority (tabu). 
(2) I am buying this dress on condition that I may return it if my husband does not like it. The first instance is a condition in a contract; the contract to buy the apartment. If the seller registers the apartment the buyer must buy it. The second instance is a condition in a sale; the sale and purchase of the dress. The sale has been completed, except that it will be undone if the husband does not like the dress. As has been discussed in many of these lessons, there is a difference between a contract to sell and a sale. A sale takes place immediately when there is an act of acquisition by the purchaser. A contract to sell contemplates that the parties will live up to their contract and the transfer of ownership will be some time in the future. (There are situations when the contract of sale and the sale take place simultaneously, but this is rare.) 

There is also an aleatory condition. What's that? If I told you in this lesson there would not be anything left to keep you in suspense to read future lessons. Suffice it so say, everyone has heard this type of condition mentioned and all married people have this condition as part of their lives. Gambling will IYH be part of the discussion of aleatory conditions.

Much of the early material that makes up a good part of these lessons appear in Shulhan Aruch Hoshen haMishpat chapter 207. It follows the teachings of Maimonides and was written before the laws of formation of contracts in halachah fully evolved. (See lessons 51, 52 and 53 in TT 437, 438 and 439.)

In fact, Maimonides cites a method used by the rabbis in Spain to give effect to promises that might be similar to a contract. They therefore speak of conditions in the making of a sale, but do not discuss conditions in contracts. On Mount Sinai God gave to the Jewish people His Torah consisting of two parts, the written Torah consisting of the five Books of Moses and the accompanying Oral Law. The Oral Law developed for centuries until the Mishnah was redacted in about the year 200 of the common era, and the Babylonian Talmud was redacted about the year 500 of the common era. Immediately thereafter there were numerous commentaries, responsa, and codes written based on the Talmud to make the life of the Jew organized and uniform, by extracting from the Talmud, rules and regulations that govern the life of the Jew. Jews of Spanish background or from countries surrounding the Mediterra- nean Sea and the Middle East are known as Sephardic Jews. Maimonides was born in Spain (in 1135) and had to flee with his family and did most of his writing in Egypt. His code is the prototype for all of the Sephardic codes, commentaries, and responsa. The Shulhan Aruch was written by Rabbi Karo, who was also born in Spain in 1488, and had to flee with his family to Salonika during the expulsion of the Jews from Spain (1492), and then settled in Safed in Israel. It is thus natural that Rabbi Karo very often follows the view of Maimonides. Rabbi Yosef Karo had written a commentary on the code of Jacob Tur and then he condensed his commentary to form the Shulhan Aruch. The Jews of Europe, especially Germany and France, and later the Jews who settled in Eastern Europe are known as Ashkenazic Jews and follows the views of the Tosafists living in the twelfth and thirteenth centuries in France and Germany. Very often Rabbi Moses Isserles, (1520-1572), who wrote the glosses on the Shulhan Aruch, did so to show the Ashkenazic tradition in the halachah. The Shulhan Aruch consists of both the code of Rabbi Karo and the Glosses of Rabbi Isserles. There are many commentaries on the Shulhan Aruch, and many commen- taries on the commentaries, and many other codes or partial codes since the Shulhan Aruch, as well as a vast amount of responsa literature explaining and interpresting he Shulhan Aruch. For those who would like to read the text of Maimonides in either Hebrewor English are referred to Maimonides Laws of Sales, Chapter 11, paagraphs 1 to 7, and Laws of Women, chapter 6.

I have attempted to coordinate the many sources from the time that the Shulhan Aruch was written to today.

We shall commence with conditions in sales in the opening lessons of this topic and then go on to conditions in contracts in subsequent lessons. 
Many communities have laws and judicial decisions dealing with sales and conditions in sales. Ordinarily they will be controlling. Or the parties may stipulate that the halachah will be controlling. If nothing is said and the laws of the community are not relied upon, then the halachah will be controlling.
As has been stated in many of the previous lessons, no sale can take place unless the buyer performs an act of acquisition on the thing being purchased. The type of act of acquisition for each type of thing has been stated in those lessons. 

When should the conditions be stated? The conditions are set forth when the act of acquisition is performed. It is then that the sales conditions must be set forth. Without an act of acquisition the thing is not sold to the buyer even if all of the conditions have been properly set forth and have been complied with and the price paid. The performing of an act of acquisition after the fulfillment of the condition does not transfer ownership to the buyer, since the parties are relying on the original non-binding sale. 

The conditions must be stated prior to the completion of the performance of the act of acquisition. If the act of acquisition has been completed, the adding of a condition is of no effect, even if it is the seller who makes a condition in favor of the buyer and the buyer is silent. Or even if it is the buyer who adds a condition in favor of the seller and the seller is silent. However, if a condition is added prior to the act of acquisition being completed, then the condition must be complied with even if the party in whose favor the condition is meant is silent. 

What is deemed the completion of the act of acquisition depends upon its definition by Beth Din in each case using the laws of these lessons.
In the next lesson we shall IYH set forth the criteria for conditions.

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