Introduction
Every legal
system needs to define when the terms of a sale, employment contract or other
transaction have been breached to the extent that the entire agreement is null
and void. However, in Torah law there is an important distinction which to the
best of my knowledge does not exist in common law. Apart from the right to
terminate a contract that has been breached, it is often crucial to know
whether the transaction was invalid from the outset. This is known as a mekach
ta'us (mistaken sale).
For example, if a married couple discovered that the wife's
wedding ring was worth much less than what they paid for it, they may have a
right to return it to the seller and get a full refund.[1] If
this is the case, it is likely that they will have a more serious problem. If
the purchase of the ring was invalid, the result is
that the man did not own it at the time that he used it for kiddushin. This
invalidates the entire kiddushin, and they must go through this part of the
marriage process again.
An important
point to make here is that the above is true even if no-one is at fault. The
couple may have lived together for years without noticing, and even the seller
may not have known that the price was unfair (the value of gold may have
dropped suddenly, or he might have mixed up two different rings).
A sale can be
invalidated even because of unknown information unrelated to the thing being
sold. The gemara tells us that if a person sold his property because of a
desperate needs to raise funds during a famine, not realising that in fact that
a huge shipment of wheat had arrived and prices would return to normal, he has
the right to retract. In a place where famine is common, this right is abrogated
out of concern that no-one will want to buy if the seller could easily retract.[2]
Unforeseen
circumstances
What happens if
all the information available at the time of purchase was known by both sides, but
knowledge of events to come would definitely have stopped one side from going
ahead? Obviously things like everyday changes in the stock market cannot
justify annulment of trades, just like famine in a place where it is common.
But what happens in freak circumstances?
The same gemara
above concludes that even if the poor seller had no need for the money due to
later events, the sale is null and void. However, Tosfos explain that this is
only when the seller indicated at the time of sale that he was only selling in
order to raise funds for something (which later became unnecessary). Such an
indication is understood as a stipulation that the sale will only be valid if
the money is needed.[3]
The Rambam also explains that the case is when the seller stated explicitly
that he is selling in order to raise funds for something specific. This
statement is understood as a condition to the sale.[4]
The Shulchan Aruch writes the same thing.[5]
From all this it
seems clear that whenever a sale or other transaction is made without condition
(explicit or implicit), it is not dependent on future events. This is presumably
what most of us would have expected, as all agreements are made with the
understanding that we can never know what exactly the future holds for us.
The case of
theft with no-one to return to
In this light,
we are faced with a difficulty when explaining a gemara elsewhere. To explain
this we first need to explain a halacha which is unrelated at first glance. One
who steals must return the stolen item (or if it is no longer extant, its value)
to its rightful owner. If the owner has already passed on, the thief must return
it to the inheritors of the person he stole from.
As every Jew has
living family members if you look hard enough, there is only one possibility of
someone with no inheritors- a convert who died without leaving children. One
who stole from such a person would not ordinarily have to pay anyone, in the
same way that an only son who stole from his father would not have to pay if
his father died.
However, if the
thief also denied his actions and swore falsely to that effect, he must always
pay someone the amount that he stole plus 20%, as well as bringing a sacrifice
to atone.[6]
Even if he himself is the inheritor, he must give what he stole to the next in
line to inherit.[7] If he
stole from a convert who subsequently died and there is no inheritor, he gives
the stolen property to the kohanim of the watch serving at the time.[8]
This obligation
only applies to the one who stole himself. If the thief dies, his inheritors do
not have to pay the kohanim. However, if the thief already paid, even if he
died before bringing the sacrifice, his inheritors cannot get the money back.[9]
The gemara discusses the reason for this.
Abaye claims
that the money paid by the thief must have achieved a partial atonement for the
theft. If this was not the case, the inheritors would have a valid argument to
have the money returned- their father certainly only paid in order to achieve
atonement. If this atonement was in the end not achieved, the payment is null
and void.
The gemara
questions this logic. Is it really true that a payment could be retroactively invalid
due to the subsequent death of the payer and its implications? Following a
similar argument, if a husband dies (without children) and his brother is a
leper, the wife should be absolved from performing chalitza.[10]
When she got married she never intended to be 'tied' to a leper!
The gemara
answers that in fact when a woman gets married, she would be prepared to do so
even if she was aware of the possibility of being 'tied' to a leper. This is
because in general, women are willing to make sacrifices in order to get
married.[11]
Rashi explains that since her husband was unblemished, she was willing to marry
him despite the risk of him dying and her becoming dependent on his brother.
The implication of
this conclusion is that theoretically, a transaction can be null and void due
to unforeseen events if we can be sure that it would not have been agreed upon
with hindsight. Technically, this is not the case with a thief paying back
money or a woman getting married to the brother of a leper, but in other
circumstances it might be. How does this fit with what we have seen previously?
Is marriage
different?
Tosfos ask the
flip side of this question. If a transaction can be invalidated by unforeseen
circumstances, any item purchased could be returned if it gets ruined subsequently!
They answer that a sale cannot be invalidated through such a mechanism, as every
sale involves two parties and the seller did want the sale to be valid even under
the circumstances. Although marriage also involves two parties, the husband
"is not concerned about her intentions."[12]
Seemingly,
Tosfos are saying that a husband is willing to accept whatever conditions a
wife has for marriage (even if they are not stated or even thought about at the
time of marriage). This is a major assertion, although elsewhere Tosfos clarify
why it is true in the case in question. As the marriage is only uprooted in the
event of the death of the husband (as only then the wife becomes tied to his brother),
the husband doesn't have much to lose.[13][14]
We can conclude
from here that a transaction involving two parties can be declared null and void
based on unforeseen circumstances. The criterion for deciding when this is the
case is what would have happened had the question been raised at the time of
the transaction. If there is a fair assumption that both sides would have agreed
that the deal would be off under these circumstances, this theoretical
agreement is enough.
Even if agreement
would not have been achieved, if one side would have backed out from the
transaction, this would logically be enough to annul it. Usually this is not
the case, as people are aware that the way of the world is to lose out due to
unforeseen circumstances and this is unpreventable. However, if one side subsequently
takes advantage of his position to harm the other, this could be grounds for
voiding the agreement. One obvious example is the case of a husband who abandons
his wife immediately after getting married.[15]
This is not the
case with the person who sells his property during a famine. One who buys
property would not agree to have to return it just because the seller did not
need the money in the end. Nor would the seller have insisted on this
stipulation, as he could not afford to forgo this means of raising funds. Thus if
no condition was hinted to (or at least consciously intended) at the time of
sale, no future event can annul it.
Conclusion
In any case many
factors need to be taken into account to decide whether agreement would have
been achieved, and it is impossible to cover all of the possible permutations
of different cases. But the estimation that needs to be made is always of the
same nature. Would the party who stands to lose have been prepared to take this
risk, in return for the gain he would have made under different circumstances?
[1] The details can be
complicated, and are set out in Choshen Mishpat siman 227. But the underlying
principle is relatively simple: the transaction is invalid if most people would
not have gone ahead with it had they known all the relevant information.
[2] Kesuvos 97a
[3] They quote another case, where a person sold his property and made
it clear that he was planning to make aliya to Eretz Yisrael. The implication
of the gemara in Kiddushin 49b-50a is that if this intention was stated at the
time of sale, the sale is conditional on the move going ahead. They explain
that although most conditions need to be clearly stated in order to take
effect, sometimes a mere indication of a person's intentions makes is
tantamount to an explicit condition. Elsewhere (Bechoros 51b ד"ה הלכך) they go further, implying that even an indication is not
necessary. But even according to this view, the sale is only invalidated by the
condition which we assume to be agreed upon by both sides.
[4] Hilchos Mechira 11:8
[6] The extra 20% and the sacrifice apply to anyone who steals and
swears falsely about it, see Vayikra 5:20-26 and Bava Kama 103b.
[8] Ibid. 110a, based on Bamidbar 5:8. The kohanim were divided into
twenty-four watches, who served bi-annually for a week at a time.
[9] Ibid.
[10] When a man dies without children, if he has a brother or brothers
one of them must either marry his brother's widow (nowadays this option is
discouraged) or perform chalitza (a ceremony where the widow removes her
brother-in-law's shoe and spits, and both of them declare that he is not
interested in marrying her. See Devarim 25:5-10.
[11] Bava Kama 110b-111a. Much has been written about whether or not this
generalisation holds true nowadays, but this question is not relevant to our discussion.
[13] Although it may raise a retroactive question over the legitimacy of
his marriage and relationship with his wife.
[15] See this
ruling which in this case arrives at the same conclusion, with slightly different
reasoning (in other cases, these differences in reasoning lead to different
results).
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