Hilchos Choshen Mishpat

Volume III : Number 1

Mekach Ta'os / An Erroneous Sale

Question:

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].

Answer:

1. 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)

2. 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 so.

3. 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)

4. 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)

Sources:

(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 with.

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 introduction:

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 227:14-15).

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 toatendler@torah.org.

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!