Hilchos Choshen Mishpat
Volume III : Number 1
Mekach Ta'os / An Erroneous Sale
Reuven discovered a very old edition of the Rambam's Mishna Torah among
some very old Hebrew books that were placed in Genizah for disposal. He
sold it to an antique book dealer, Shimon, for $1000. Shimon discovered
handwritten notes on the margin of the Rambam that were signed by the
Rema, which made the actual value of this Rambam $50,000! Is the original
sale void, or do we say that Shimon may keep the Sefer and profit?
[Please note that the prices mentioned here are just examples and do not
reflect the actual price for such Sefarim].
- A. When it comes to antiques, since there are so many variables governing
the value of the object being sold, and there is really no clear, set,
market value to any one item, in most situations the Halachos of Ona'as
Mamon (overpricing) are not applicable, and neither side may void a sale
based on the claim that the item purchased was under or over priced.
However, if, for example, all dealers would pay at least $10,000 for this
item, but some might pay much more, and the item was sold for less than
$10,000, the seller would be permitted to claim that he was underpaid for
the item purchased, and the sale may be voided. (1)
- B. Therefore, in our case, where the Rambam with the Rema's signature is
worth at least $10,000 according to _all_ antique book dealers, the sale
is void (since it was sold for considerably less than that) and Reuven
may demand it back. However, he may not demand that Shimon purchase the
Rambam for an additional $49,000, if the dealer has no interest in doing
- C. If after purchasing the Rambam, Shimon discovers that only some of the
pages are from the Rambam, but it was bound together with another very
rare Sefer that greatly increases it's value, or that in the binding of
the Rambam antique manuscripts were used which also increase the value of
the Sefer, and Reuven was totally unaware of this, Shimon may keep the
Sefer and does not have to inform Reuven that it was actually worth a lot
more than what he sold it for.
However, if Reuven had received the Sefer as a family inheritance, in
this situation the sale would be void and Shimon would have to return it
to Reuven if Reuven would like to return the money received and get the
Sefer back. (2)
- D. Although we stated previously that there generally is no Ona'as Mamon
when selling antiques, it is obviously forbidden to sell something that
is defective without informing the buyer of the defect. It is also
forbidden to sell an item under the pretense that it is the original,
when it is really only a copy. If this should occur, the buyer may void
the sale and demand his money back whenever he finds out about this, even
if it is many years after the actual sale. (3)
(1) A distinction must be made between sales of common items, and sales
of antique items. When selling common items, the price is determined by
what the wholesale value is, plus a predetermined percent that is normal
for all merchants in that area selling this type of item to add to
receive a profit. Therefore, it is possible for a customer to void a sale
claiming that an item was overpriced, i.e. that he discovered that this
item is being sold in other area stores for a price that is at least 16%
less than what he actually paid for it, as is discussed in the Shulchan
Oruch, Choshen Mishpat 227.
On the other hand, antique items are generally rare, and are not readily
available elsewhere. Therefore, a buyer can not claim that he could have
purchased it elsewhere for a lower price. Additionally, there really is
no set predetermined price for an antique. It is very well possible for
an item worth $10,000 this year to be worth either $5,000 or $50,000 next
year, without any rhyme or reason for this massive fluctuation in price!
Similarly, there are many items that are not considered valuable to most
antique dealers, but there may be one who has a customer in a distant
country whom he knows is willing to spend huge amounts for this item,
either because his grandfather or Rabbi had a personal relationship with
the author, for example, or perhaps this volume completes a set that he
has been collecting for years. It is therefore impossible to claim that
you were underpaid for this item, just because the dealer will be getting
a much greater price from a collector that he is personally familiar
Therefore, in most situations the claim of Ona'ah is not relevant
regarding antiques, neither from the buyer nor the seller's point of
view. However, if _all_ dealers agree that there is a certain minimum
price that would be paid for this item, and the buyer received much less
than that amount, he would have a claim of Ona'as Mamon and would be
able to void the sale.
(2) To properly explain this distinction, we must make the following
The Mishna in Bava Metziah (25b) states that if someone finds an old,
rusted coin, in a stone wall that belongs to his friend, he need not
return the coin to the owner of the wall. The reason is because he can
tell his friend that since it is so rusted, it's likely that the coin
came from the people who owned this wall before you. Tosafos over there
ask - why don't we say that the owner of the wall acquired it since it
was in his domain (Kinyan Chatzer), as we know that the domain of a
person can acquire lost items for the owner of that domain? Tosafos
answer that this is only true regarding objects that it is likely that
the owner will find, whereas in our case it is possible that he never
would have found this coin.
The Mordechai (248) derives from this statement of the Gemara that if a
person found a rock that he assumed contained lead, and sold it to his
friend who found that only the outside surface was lead coated but the
inside was actually pure silver, the buyer may keep it. Since the seller
had no knowledge of the silver content at all, he only intended to
acquire the lead contained in the rock, not the silver within it.
Although he made a Kinyan on the item containing the silver by lifting
it, since a Kinyan requires knowledge and intent, which is lacking in
this case, the seller never owned the silver and has no claim on it. He
intended to acquire lead, not silver. The words of the Mordechai are
quoted by the Rema in Choshen Mishpat 232:18 as the Halacha.
Therefore, in our case, where Reuven found an ownerless Sefer, he needed
to make a Kinyan to become the owner, which he did. Although it was
later found that the Sefer was worth considerably more than what he
originally thought, since it was previously owned by a great person, this
is still the Sefer that he acquired - there is nothing lacking in his
actions or his intent at the time that he acquired it. If it is found
that he was underpaid for the Sefer, the sale may be voided, even if this
was unintentional, as discussed in the Shulchan Oruch (Choshen Mishpat
However, in the case discussed in Answer C, where it came to light after
the sale that there is an entirely different Sefer or manuscript enclosed
in this Sefer which Reuven was unaware of, which greatly increased the
value of the Sefer, this is an entirely different object that he never
intended to acquire, and the buyer need not return it. If Reuven acquired
it through an inheritance, since no Kinyan is necessary, as any inherited
objects immediately belong to the heir whether or not they have knowledge
of it, his lack of awareness of the enclosed valuable Sefer or manuscript
is irrelevant, and the sale would be void in any case.
(3) The Shulchan Oruch, Choshen Mishpat 232:6-7, states that whenever
someone buys something without specifically stipulating otherwise, he
intends to purchase something without any defects at all. Any defect that
is considered to be so by most people in that society, voids a sale. It
is clear that this applies to sales of antiques also, and unless
otherwise stipulated, it must be free of defects and must be the original
when it is represented by the seller as being so.
Feedback is appreciated! It can be sent email@example.com.
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
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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!
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