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March 27, 2015 / 7 Nisan, 5775
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Unstated Intentions

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The boss called Mr. Haber into his office. “We are downsizing our branch here, but have an open position in another city,” he said. “We’d like to relocate you to our other branch.”

Mr. Haber was not pleased about the move. However, it was important to maintain his position in the company, so he and his wife began making preparations. They inquired about yeshivas, housing options, and moving companies. As the time approached, they began sorting their household items, those to take and those they would sell.

Three weeks before moving, they posted on their community list a notice: “Moving sale! Many household items at reduced price. Sunday afternoon this week and next.” They also placed a big placard at the front of the house.

Among the items sold were Mr. Haber’s bicycle, their refrigerator – with an agreement to leave it until they moved – and some heavy professional tools.

A week before the move, Mr. Haber’s boss called him in. “We have some news for you,” he said. “We hope you’ll consider it good news.”

“What is that?” asked Mr. Haber.

“Three of our other workers transferred to other companies, so we would like you to stay here,” said the boss. “There is no need to relocate you.”

“Wow!” exclaimed Mr. Haber. “You really caught me by surprise! We’ve been making plans for two months, but we might be very happy to stay. Let me consult with my wife.”

That evening Mr. Haber discussed the issue with his wife. They decided to stay.

“What about all the items we sold?” Mrs. Haber asked her husband. “It’s going to cost us double to buy new ones to replace them. Can we get them back?”

“I don’t know,” he replied. “They’re sold!”

“But we sold them because of the anticipated move,” she said. “If we’re not moving, the sale should be null and void.”

“We didn’t stipulate that the sale was contingent on the move,” said Mr. Haber. “We don’t have legal basis to revoke the sale.”

“Why don’t you consult Rabbi Dayan?” suggested his wife. “See what he says.”

Mr. Haber called Rabbi Dayan. “We sold various household items, including my bicycle, the refrigerator and some professional tools with the expectation of being relocated,” he said. “It turns out we’re staying. Can I annul those sales?”

“The Gemara [Kiddushin 49b] discusses the case of a person who sold his property with intention to emigrate to Israel but made no mention of this at the time of the sale,” replied Rabbi Dayan. “His plans fell through, so he wanted to invalidate the sale. Rava ruled that non-verbalized intentions are not of legal consequence – devarim shebalev ainam devarim – so he cannot invalidate the sale.”

“We clearly mentioned the sale was a moving sale,” noted Mr. Haber. “Does that make a difference?”

“Tosfot [s.v. devarim] infers from the Gemara that if the person mentioned his intention to emigrate at the time of the sale he could undo the sale,” explained Rabbi Dayan. “They distinguish between three cases: Where there is circumstantial support, such as in the Gemara’s case, we suffice with verbal indication – giluy da’as – at the time of the sale; where there is insufficient circumstantial support we require an explicit stipulation; and where the intention is absolutely blatant it is not even necessary to indicate verbally.” (C.M. 207:3-4)

“So our case,” asked Mr. Haber, “should be one where there is circumstantial support and we should be able to undo the sale on account of the giluy da’as?”

“It would seem so,” said Rabbi Dayan. “However, the Rama [207:4] limits Tosfot’s ruling about giluy da’as to real estate, which people do not sell without good reason. However, moveable items – which people often sell without great need – require explicit stipulation. Thus, even though you mentioned your intention to move, this is insufficient circumstantial support to determine the move was meant to be a conditional factor for the sale of the bike. However, regarding the professional tools, which people only sell for good reason, if the plans fell through, that sale is invalidated when there was a giluy da’as.” (Pischei Choshen, Kinyanim 20:56)

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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