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Seller’s Remorse
‘He Sold Because He Ostensibly Needed the Funds’
(Ketubbot 97a)



Our Gemara relates that a certain individual sold land to R. Papa, as he needed funds. It later turned out that he had no such need. When he approached R. Papa to abrogate the sale, R. Papa agreed. Initially the Gemara refers to R. Papa’s action as an example of his piety, inferring that he would have been within his right to maintain his purchase. However, the Gemara considers the matter: Where a person sold land for a specific purpose, such as to obtain funds to purchase a certain object – such as wheat – does he have the right to cancel the sale if it turns out that he doesn’t need the money [or the object]?

The Gemara concludes that if the seller indicated that he was selling his land because he needed funds for a certain purchase, it is considered as though he explicitly stipulated that the sale was contingent on his needing the funds. Therefore, if it turns out that the funds were not needed, he can retract and cancel the sale.


Eretz Yisrael Bound

Similarly, the Gemara (Kiddushin 49a) states that if a man who sold all his property and mentioned that he was doing so because he wanted to go to Eretz Yisrael, he has the same status as one who explicitly stipulated that the sale was contingent on his move to the Land of Israel. If, in the end, he is forced to cancel his plans to emigrate, he can nullify the sale and recover his property.


Chattel vs. Land?

The Tur (Choshen Mishpat 207:5), citing Rashi, distinguishes between real estate, which as a rule people are reluctant to sell, and metaltelin [chattels], which are sold more readily. It is unusual to sell real estate without a good reason. (This is probably based on Midrash Vayikra Rabbah 22:1), which states that there is no greater void than lack of possession of land.) Thus, if one mentions that he is doing so because he intends to emigrate or because he needs money, it is considered as though he made an explicit stipulation. However, when one sells chattels with the intention to emigrate, there is no presumption that he wishes to make the sale conditional on his emigration [unless he says so explicitly] since it is a routine occurrence to sell chattels (c.f., Tosafot s.v. “zavin”).


Physical Possession

Alternatively, the Haggahos Asheri (cited by Pis’chei Teshuva, Choshen Mishpat 207: sk 5-6) explains that the sale of metaltelin is different from the sale of real estate because one who buys chattels [generally] takes physical possession of his purchase, making him a muchzak [his taking hold of the object establishes immediate legal possession], whereas one who purchases real estate is not a muchzak since the land cannot be physically placed in his domain. In order for a seller to recover his chattels from the buyer, he must conclusively prove that the sale was conditional, since the buyer is the muchzak. If he did not explicitly state the stipulation, he cannot retrieve his chattels from the buyer, since he cannot conclusively prove that the sale was conditional.

The Pri Tevuah (Responsum 31) states, accordingly, that the seller of chattels can retract the sale based on an unspoken condition if the buyer has not yet taken the chattels into his possession [i.e., he used kinyan sudar – acquisition via a kerchief as an exchange rather than kinyan meshicha – acquisition by physically pulling or moving the object].

The Chasam Sofer (Responsum Choshen Mishpat 102), actually ruled in the following case. A person sold a silver vessel for cash [i.e., there was no physical kinyan] for the purpose of purchasing a boiler. The buyer had not yet taken possession of the silver vessel, and in the meantime the seller inherited such a boiler. The sale can be cancelled. [May the same logically follow where the buyer wished to rescind the sale since there was no physical possession?]


Buyer’s Remorse?

There is a difference of opinion among the authorities (Rabbenu Yona and Rabbenu Chananel, cited by Pis’chei Teshuvah ad loc. Choshen Mishpat 207: sk 5) as to whether a buyer can cancel a sale based on an unspoken understanding. Tosafot (Ketubbot 47b, s.v. “shelo kasav”) discuss a case in which a cow perished shortly after it was sold [due to no fault of the seller] and the buyer demanded a refund, claiming that it was a transaction based on a mistake. [See Tosafot there for an explanation as to why the buyer’s claim lacks merit, and the sale is not retroactively nullified – even though it is understood that he did not buy the cow for the purpose of feeding its carcass to dogs.]


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Rabbi Yaakov Klass is Rav of K’hal Bnei Matisyahu in Flatbush; Torah Editor of The Jewish Press; and Presidium Chairman, Rabbinical Alliance of America/Igud HaRabbonim.