Hilchos Choshen Mishpat

Volume II : Number 35

"Ani HaMehapech B'Charara" - Tortious Interference

Question:

Reuven has made an agreement to purchase a home from Shimon, however no Kinyan (formal acquisition) has been completed between them. Is Levi permitted to interfere and try to get Shimon to sell the home to him?

Answer:

1. A. If a person has made an agreement to buy or lease a house, car, or any other item from someone, and a price has been agreed upon, even though no Kinyan has been completed, it is forbidden for a third person to attempt to interfere and try to buy or lease it for themselves. In the language of our Chaza'l, this is called a "Ani HaMehapech B'Charara" - literally: an impoverished person chasing a crust of bread.

   This prohibition applies even if the second person (Levi) is prepared to offer a higher price than what the buyer and seller have already agreed upon.

   If someone purchases an item, and only after the purchase finds out that the seller had actually agreed to sell it to someone else, the buyer must void the sale for the benefit of the first person (if he is still interested in purchasing it).

   In the above situation, if the buyer refuses to return it to the first person, the sale or lease is effective and it does belong to the actual buyer. However, he has transgressed a Rabbinic prohibition, and our Rabbis call him a Rasha (wicked). (1)

2. B. The Halacha mentioned above is true even if the buyer and seller are still in midst of negotiating a price, but it is likely that if not for this outside interference they would have come to agreement. On the other hand, if negotiations seem to have broken off or are at an impasse, it would be permitted for someone else to step in and try to buy it for himself. (2)
3. C. There is no prohibition of "Ani HaMehapech B'Charara" regarding any sale that is being conducted via an auction.
4. D. Most Halachic authorities are of opinion that the prohibition only applies if the second buyer would be able to purchase a similar item or home for a similar price and terms. If the item in question is being sold for an especially low price or with exceptionally good terms that probably would not be available again, it would be permitted for an outsider to present his own bid and interfere with the ongoing negotiations. However, even in this case, it is Midas Chassidus (pious conduct) not to interfere, and to be concerned about the opinion of the minority Halachic authorities that the prohibition does also apply in this case.

   However, if the second buyer is poor, and the first buyer is wealthy, and the first buyer could purchase a similar item from someone else, according to all opinions the second buyer is permitted to interfere in the negotiations, and it is not even Midas Chassidus to refrain from doing so. (3)

5. E. The prohibition of Ani HaMehapech BeCharara is only for the second person to approach the seller with his own offer, and to try to exclude the first person from the sale.

   However, if the seller made an offer to sell it to someone else while negotiating with the first person, or advertised publicly that the home or item is still available, even after he agreed to sell it to the first customer but no Kinyan (formal acquisition) has occurred, the second person is permitted to express an interest and offer a bid. Although our Chachamim frown on someone who has verbally agreed to do something and backs out for no good cause (Ain Ruach Chachamim Nochah Heimenu), this does not prohibit the second buyer from expressing interest when he has been approached by the seller. (4)

6. F. Obviously, all of the above is only if there has been no Halachic Kinyan between the seller and the first buyer. If there has been a Kinyan, neither side may back out, and the sale is effective to the first buyer alone. (5)

Sources:

(1) The Gemara in Kiddushin 59a states that it is forbidden for anyone to acquire an item that someone else has already entered an agreement to purchase, even if there has been no Kinyan. One who does so is a Rasha, and has transgressed a Rabbinic prohibition. This is true even if the second buyer only became aware that there had been a previous agreement on this item after he purchased it, as is clear from the story about Rav Giddel mentioned there. This is stated as the Halacha in the Shulchan Oruch, Choshen Mishpat 237:1, and in the Pischei Teshuva there (2).

(2) This is based on the opinion of the Perisha quoted in the Pischei Teshuva (237:3).

(3) This is the opinion of most Rishonim, and that of the Shulchan Oruch, as explained by the Nesivos in Biurim (2), and the Rema there. Since it is not available anywhere else for this price, in their opinion the above mentioned reason is not applicable. However, Rashi and the Ramban (quoted in the Shach there) both feel that the prohibition is even applicable when it is not available elsewhere, and therefore it is proper to be stringent and not to purchase it.

(4) The SM"A (386:10) and the Teshuvos Avnei Nezer (Choshen Mishpat 17) state that there is no prohibition of Ani HaMehapech B'Charara regarding the seller. Sine he is permitted to do whatever he wishes with his property, he is permitted to seek out another buyer even after reaching agreement with the first buyer.

However, the Gemara in Bava Metzia (49a) and the Shulchan Oruch (Choshen Mishpat 204:7, and in the Rema there 11), state that anyone who does not keep to his verbal commitments is not considered favorably in the eyes of our Chachamim. Therefore, if the seller did make a verbal commitment he must keep to it, although technically if he would back out and sell it to the second customer, such a sale would be effective.

The Rema there quotes two opinions regarding a case where the second buyer is offering a much higher price than has been agreed upon with the first buyer. Some say that in this case there is no disfavor in the eyes of the Chachamim to back out, and others say that even in this case the seller is considered unfavorably if he backs out of his agreement. Although the Rema agrees with the second opinion, the Biur HaGr"a there (18) agrees with the first, and the custom is to allow the seller to back out in this situation. However, it is definitely preferable to be stringent according to the opinion of the Rema, especially in situations where such a reversal will create Chillul Hashem.

It should be noted that this disagreement between the Rema and the Gr"a also applies in the opposite case, where the buyer wishes to back out of the agreement because he has found a similar item for sale at a lower price. However, if the buyer has become aware that the agreed upon price is 16% more than the going price in other stores in that area for this item, all agree that the buyer may back out of the agreement.

Similarly, if the buyer and seller did not make a definite commitment, but discussed the possibility of the sale and both seemed to be agreeable, and one wanted some time to seek advice from family and friends, either party may back out, and there is nothing unfavorable about this. In this situation there would also be no prohibition of Ani HaMehapech B'Charara for a second buyer to get involved, since the prohibition is only if there has been agreement, or there are ongoing negotiations that seem to be leading to agreement, as explained in The Rema (237:1) and the Pischei Teshuva there (3).

(5) This is stated in the Rema (237) and in the Nesivos in Chiddushim (8).

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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!