Shabbat Parashat Bereshit | 5768
Sale of Land Without Registry in the Tabu - Based on Halacha Psuka vol. 32 - Condensation of Piskei Din Rabbaniim V - pp. 120-123
Case: The plaintiff (=pl) negotiated with the defendant (=def)the purchase of property. The two arrived at a sales price of 25,000 liras, and a down payment of 3,000 liras was made. In the meantime, a contract was in the process of being drafted and negotiated. Before this was completed, def decided to sell the property to a relative. Pl claims that the payment of money should work as a kinyan, thus preventing def from backing out. Def says that she informed her lawyer, who was handling the stages of the transaction, that her relatives should have priority and she informed the potential buyer as soon as it became clear that a relative was interested.
Ruling: Although the down payment was a form of kinyan kesef (transaction through payment of money) and that kinyan is valid for purchases of land, in our days that is insufficient to work alone as a kinyan. Firstly, the Shulchan Aruch (Choshen Mishpat 190:7) rules that in a place where documents are normally drawn up for land sales, money without a document does not effectuate a sale. Secondly, since by law a land sale cannot be complete without registering the ownership transfer in the Tabu (Land Registry), in the absence of that step, no halachic kinyan will be complete (based on Divrei Emet 12; Toafot R’em CM 13; Chatam Sofer 142).
An important question is: in the absence of a kinyan, is there a mi shepara (a curse for one who reneges on a transaction after money was paid)? This classically applies when money was paid for a movable object and a valid kinyan was not done (Shulchan Aruch, CM 204:1). The Beit Yosef (ad loc.) brings a machloket whether it applies also to a case where money was insufficient to work even for land (where in theory it could have). The Ramban says that since money can effect a full kinyan for land, mi shepara was not instituted regarding land. The Ran argues that in a place that requires a contract as well, one who backs out after money was paid is subjected to a mi shepara. (R. Akiva Eiger (Shut 134) and Mishk’not Ya’akov (CM 55) concur.). Therefore, there seem to be grounds for doing a mi shepara if def does not go through with the sale.
However, in this case, mi shepara cannot be done for the following reason. Def did not accept the money; rather, her lawyer did it. Since pl knew that the lawyer did not have authority to finalize a deal that def had not given final approval to, he should not have given the down payment. In a similar case, the Sho’el U’meishiv said that there is no mi shepara for one who wants to back out of a sale done on condition that the owner agrees to the sale. It is also not clear that the lawyer was authorized to accept the down payment before negotiations were complete, and when an agent oversteps his bounds, his actions are not binding (see Shulchan Aruch, CM 182:7).
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