Shabbat Parashat Lech Lecha 5777

P'ninat Mishpat: Fixing Status of a Non-Standard Apartment – part III

Case: The plaintiffs (=pl) bought from the defendant (def), for 910,000 shekels, an apartment in an old building that does not have a building permit or a Tofes 4 (certificate of fitness for occupancy). It is also not connected directly to meters of the electric and water companies (they pay through a neighbor). After pl complained to the municipality, the latter issued an order to destroy the building (it may never be acted upon). Def did not inform pl of these deficiencies but argues that pl could have easily found out themselves. Pl demand that def take action to fully legalize the apartment/building, the feasibility of which is under dispute between the sides. Alternatively, pl demand 400,000 shekels compensation. Def claims that the building’s legal status does not affect the apartments’ value. He offered pl to try to sell the apartment, and if they cannot get a price that is fit for normal apartments, def will buy it from them at full price. Def made several other offers involving buying back the apartment with certain conditions, but pl want to stay in the apartment.

Ruling: [We have seen that def did not obligate himself by agreement to make the apartment fully legal and while its status is grounds for bitul mekach (nullifying the sale), pl is not interested in carrying that out. The present question is whether the laws of sales require the seller to fix blemishes in the sales object instead of bitul mekach.]

The Shulchan Aruch (Choshen Mishpat 232:5) says that if a sold property has a significant blemish and the buyer wants to invoke bitul mekach, the seller can demand to reduce the price enough for the buyer to have it fixed rather than do bitul mekach. The Rama (ad loc.) says that the seller can make that suggestion only when the blemish is somewhat external but if the essential sales item is significantly lacking, the buyer’s right to bitul mekach is total.

The classical poskim do not discuss the opposite case, where the seller is willing to do bitul mekach and the buyer demands to reduce the price or enable the flaw to be fixed. Among later authorities, the Ulam Mishpat (ad loc.) says that when the sale is not void, the seller has to fix what he can. The Lev Meivin (Shut, CM 144) implies that there is no such obligation on the seller, even when he has the opportunity. However, all seem to agree (see also Netivot Hamishpat 60:10) that the seller’s obligation to see a sale through is only when it is within his ability to do so. When he does not have a sure chance, he is not obligated to try. In our case, there is no guarantee that the building’s other occupants and/or the municipality would enable def to push through the necessary changes, and therefore he is not obligated to try.

We urge pl to consider, after studying this ruling, accepting def’s offers to buy back the apartment under various conditions.

Since def violated selling a flawed apartment at above its proper market price, some say that he has a moral obligation to return the difference (see Pitchei Choshen, Onaah 10:(6)). His actions also caused pl anguish and legal expenses. Therefore, beit din exercises its right to obligate a side in payment beyond the letter of the law, and rules that def must pay 10,000 shekels.

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