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Shabbat Parashat Vayishlach | 5770

Hemdat HaDaf HaYomi: A Mistake in Measurement in a Real- Estate Transaction (103b)

Rav Ofer Livnat

Kislev 12- 18, Baba Batra 100-106

This week we will continue to discuss an issue that we dealt with two weeks ago in the Hemdat Hadaf Hayomi for Parshat Toldot. There we learned that when a deal was made on a certain amount of merchandise, and the merchandise was found to be lacking, according to Rashbam the sale is void, while according to the R"I Migash the sale is valid, and the seller must complete the required amount. If he cannot complete the amount, according to the Ramban the sale is void, while according to the Rashba the sale is valid and the buyer subtracts the value of the missing merchandise from the purchase price.

This week in the Daf Hayomi, the Mishna (103b) states that when a person sells a certain amount of land, and it was stipulated that the tract is subject to an exact measurement, if the property is found to be short of the size agreed upon, even if only by a small amount, the buyer subtracts the value of the missing land from the payment. The question is, how can this Mishna be resolved according to the different opinions in the Rishonim mentioned above?

For the Rashba, this Mishna fits in perfectly with his opinion, since he claims that whenever the missing merchandise cannot be completed, its value should be deducted from the payment. However, according to the other Rishonim the sale should be void in such a case.

The Rashbam (d"h pichet) claims that a sale of real estate is different from any other sale. In other sales, even if only a small amount of merchandise is missing, the sale is void. However, the Sages assessed that, for real estate, people prefer to accept the property even if it is slightly smaller than what was agreed upon, and therefore the sale is valid and one need only deduct the value of the missing land from the payment.

The Ramban disagrees with the Rashbam and claims that there is no difference between real estate and other merchandise. He offers two explanations of the Mishna. One explanation is that indeed the buyer has the choice to either cancel the sale or accept the deduction from the payment. The second explanation is that, when a person stipulates that he wants exact measurement, his intention is that he is willing to accept a slight deviation in the size, as long as the difference is reflected in the purchase price.

The Nimukei Yosef (49b in the pages of the Rif d"h matnitin) offers a different explanation. According to his opinion, everything is dependent on the significance of the difference in amount. If the difference is large, then the sale is void. However, if the difference is small, as is in the case of the Mishna, where a large piece of land was  and, the difference in size was small, then we assume that the buyer does not want to cancel the sale, and the value of the difference is deducted from the payment. According to this explanation, in every case we have to check and estimate if the difference justifies the cancellation of the sale.

 

Summary and Ruling:

As noted two weeks ago, the Sma (232, 2) rules like the Ramban that when the merchandise is lacking from the amount agreed upon, and the missing amount cannot be completed, the sale is void. However, in the case of a sale of real estate, when there was a stipulation that the sale is subject to exact measurement, and the land was found to be short of the size agreed upon, the Shulchan Aruch (218, 7) rules, as is stated in the Mishna, that the value of the difference is deducted from the payment. The Sma (ibid and 218, 27) explains the Shulchan Aruch like the second explanation of the Ramban, that when a person stipulates that he wants exact measurement, his intent is that if the land is found short he wants to accept the sale and revise the price.  

 

 

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Dedication

Hemdat Yamim is dedicated in memory of
R. Yona Avraham
ben Shmuel Storfer
z”l

This week’s Hemdat Yamim is dedicated in loving memory of
R' Meir ben
Yechezkel Shraga 
Brachfeld

o.b.m 

Hemdat Yamim is endowed by
Les & Ethel Sutker of Chicago, Illinois in loving memory of
Max and Mary Sutker and
Louis and Lillian Klein, z”l.

 

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