Shabbat Parashat Ki Tetzei| 5763
Ona’ah (Mispricing) - VII - Who Can Cancel the Sale?
We have mentioned in the past that when an item is mispriced by more than a sixth of its value that the sale may be canceled. Certainly the side which was taken advantage of may back out of the sale. What happens if the side that took advantage wants to back out?
The Rif and Rambam rule, based on the logic of Rav Chisda (Bava Batra 83b), that if someone overcharged by more than a sixth but the price subsequently went even higher than he charged, that the seller cannot back out. Rav Chisda reasons that since the sale would have been final had the seller not overcharged, he should not gain an opportunity to withdraw by his misdeed. Yet, the gemara in Bava Metzia 50b says that both the buyer and the seller can back out. The Rivam answers that the seller can back out only when the buyer demands back the difference between the proper price and the one he charged. Otherwise, the seller may not back out.
Rabbeinu Yonah, quoted by the Rosh (on Bava Metzia 50b), says that whenever the buyer can back out, so can the seller, until the time that the buyer (assuming he is the one who was cheated) says or shows that he has no intentions of nullifying the sale. As the Netivot Hamishpat (227:1) explains, a sale that can be cancelled is not complete, and its future hangs in the balance until a decision is made. If the buyer decides to accept, the sale works retroactively (there is no need to make a new act of kinyan). The machloket is about who has the prerogative during this interim period.
The Shulchan Aruch (Choshen Mishpat 227:4) rules that only one side can back out. The Rama (ad loc.) says that they both can..
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