The purpose of making an act of acquisition is that the sale will be final, that is, both parties will realize at what point in time there is a finality to the sale, for otherwise no one will enter into negotiations to purchase anything knowing that the sale can be rescinded by the seller. No one would purchase a loaf of bread in the supermarket if the company that sold the bread to the market could move to rescind the sale to the market and the market could then rescind the sale to the customer.

However, there are times when the seller sells because of coercion or duress. If this is true, then the seller does not have the requisite intent to sell and without intent on the part of the seller to sell and the buyer to buy, there is no sale, even though the outer trappings of a sale has taken place. The halachah recognizes that coercion or duress is a reason for a person not to be held responsible for his acts. There must be a procedure for Beth Din to follow in those few instances where such an allegation is raised by the seller. This lesson and the next lesson examines the rules relating to that situation.

Whether the seller receives the full consideration for the sale or receives an unfair price or no money at all, makes a difference in whether the seller can raise the plea of duress. However, there may even be an opportunity for the seller who receives full consideration and states at the time of the sale that it is being sold of his own free will and without coercion, to later claim that it was really a sale under duress. If the seller makes a protest before the sale, he may, under the circumstances stated in this lesson, raise a plea of coercion.

What type of coercion is considered sufficient for Beth Din to set aside the sale? When must the seller make his protest and what form must it take? Do all the laws of protest apply to gifts?

There are times when the seller, in order to obtain money from the buyer for a debt due from the buyer to the seller, pretends that he is selling. Is this a case of sale without intent? The situation when a Jew consents to pay interest to a Gentile lender after the loan has been made is similar to that. (A Jew cannot charge or pay interest to a fellow Jew. He may pay interest to or receive interest from a Gentile.) Did the Jew really intend to have interest paid, or was it paid because of duress?

Can a buyer plead that he was coerced into buying? A situation may arise where the seller loses his field to a robber, and now the robber wishes to purchase the field. Is such a sale valid if the seller does not protest?
Many communities have laws and court decisions dealing with sales in made under duress, and such laws will ordinarily be binding on the parties.
The first thing to know is that there must be intent of both parties to conclude the sale. If one of the parties to the sale does not have the intent to sell or to buy, the sale is voidable and can be set aside in a lawsuit by the party alleging lack of intent The burden of proof is on the party pleading lack of intent. * If the seller receives a fair and full consideration for the item sold, whether real estate or personal property, and admits at the time that he is selling of his own free will, then the seller cannot plead that the sale was under duress. The value need not be in cash; it could be in merchandise equivalent in value to the item bought by the buyer. There is a difference of opinion as to whether there had to have been witnesses present to preclude the seller pleading duress in the sale in which he received full compensation. According to one opinion if there were no witnesses present when the seller received the money, he can plead duress in the sale even though he later admits that he received the full consideration. He has to return the money to the buyer if Beth Din finds there was duress. According to the second opinion, if the seller admits that he received the full consideration, then he can no longer plead duress in the sale even if there were no witnesses present when he received the money.

There is a difference of opinion if the seller receives a promissory note of the buyer instead of payment in cash or equivalent at the time that he gives the deed to the buyer. According to one opinion even if it is acknowledged that the buyer's promissory note can be relied upon to be paid, it is not the equivalent of cash and the seller is not precluded from pleading that the sale was under duress. The other opinion holds that if the promissory note can be relied upon to be paid, and if the seller does so, he has the requisite intent to sell.

If the seller does not receive a fair consideration and can prove it, then he may plead that the sale is under duress. This may be true even if the seller does not make a prior or contemporaneous protest against the sale. There is also a view that if the thing being sold is real estate, and if there is no protest, the sale cannot be undone on the basis of duress.

Even if the seller receives a fair and full consideration from the buyer, there are times when he can plead that he sold under duress. If the seller protests prior to the sale that he is going to give a deed or bill of sale to the item, although he is being forced into doing it, the protest lays the foundation for his later lawsuit to set aside the sale as being under duress. On the other hand, even if it is known to the persons who witness the transfer of the item to the buyer that there is duress, but no protest is made, the transfer will not be undone on the basis of duress.

The protest must be made before the seller writes or instructs the writing of a deed for realty or a bill of sale or personal property, where the custom is to prepare such instruments. If the seller could protest after the writing of the deed no deed would have any value.

The fact that the seller in the presence of the witnesses later states that the sale is not under duress does not vitiate the earlier protest since the statement that he is not under coercion might itself be coerced.

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

[The Parshat Yitro Homepage]
[The TORAH tidbits Homepage] [How to use TORAH tidbits]
[About The OU/NCSY Israel Center] [About TORAH tidbits]