Question
I bought an apartment in Bnei Brak half a year ago. The contract says that after I make eight monthly payments title on the apartment will be transferred to me, but in the interim title to the apartment remains the seller's and he lives in the apartment without paying me any rent since it is his apartment. During the recent war a missile landed near the apartment causing very extensive damage to the apartment. Since the government will rebuild the apartment, my seller wants to cancel our agreement since the apartment will be worth much more after it is rebuilt than it is worth now. He claims that since he is still the owner he can cancel the sale. Does he have the right to do so?
Answer
In order to answer your question, we have to understand what transpired by your making monthly payments. Your question is whether these prepayments create an obligation upon the seller to carry through with his commitment to sell you his apartment or not.
The Gemara (BM) discusses the concept of prepayment in the context of the laws of ribbis. There is a rabbinic prohibition of ribbis when one prepays because the reason people prepay is in order to secure a discount. When the buyer eventually receives the object that he prepaid, it seems that the reason he paid less than a person who did not prepay is because of the prepayment. The money that the buyer prepaid resembles an interest-bearing loan since the buyer gave money to the seller without receiving anything in return and later received a discount as a result. The prepayment resembles a loan and the discount resembles interest.
The Gemara (BM 63A) rules that even though one may not generally prepay, an exception is made in case the seller has in his possession the object that he is selling (or an identical copy) at the time of prepayment. The rationale is that in that case Chazal viewed the buyer as not having prepaid for the object. Rather when he paid, he immediately acquired in a sense (will be clarified) the object that he will eventually receive. Rashi explains that even though the buyer did not perform a formal act of meshicho through which he would actually acquire the object, nevertheless, for the purpose of avoiding the prohibition of ribbis, payment suffices.
In order to understand why payment suffices, we have to recall the way one formally acquires a movable object. According to the Torah, the way to acquire a moveable object is by paying for it, a kinyan known as kesef-money. The Rabbonon removed this kinyan and instituted that in order to acquire a movable object one must perform an act of meshicho on the object that one wishes to acquire. This kinyan is performed by raising or moving the object that one wishes to acquire.
However, when the Rabbonon removed the kinyan of kesef, they said that one who receives money and then fails to abide by the sales agreement after money was given over, receives a curse known as a mi shepora (BM 47B-Hashem who punished the generation of the flood etc. will punish those who fail to keep their word). Rashi (63A), Tosafos (62B) and others explain that the reason one is allowed to prepay for an item that remains owned by the seller is because after the prepayment if the seller eventually does not provide the object that was prepaid, he will be subject to a mi shepora. Thus, a person who receives prepayments and then reneges on his commitment will be cursed with a mi shepora.
Generally, a mi shepora only applies when one pays for a movable object because the Rabbis left in place the kinyan of kesef for non-movable objects. Therefore, perhaps when one sold an immovable object, as in your situation, your seller will not be cursed with a mi shepora if he reneges on his commitment. However, many opinions (See Pischei Teshuvo 204, 2) including Tosafos maintain that when one gives money to acquire land but due to technical reasons the money did not effectuate a legal transfer of the land, the one who reneges on his agreement is cursed with a mi shepora. These opinions maintain that your seller may not renege on his agreement and if he does, he will be cursed with a mi shepora.
A second reason that your seller may not renege on his commitment is based on the Mahara Sasson's (Res 133) explanation of the Rashbo (Res. 3, 65). He explains that if one performs a kinyan to personally obligate himself (a shibud hagoof) to fulfill a commitment, he is obligated to fulfill this commitment. The Rama (BB 1, 26) adopts a similar approach. (He says that the seller created upon himself a monetary obligation.)
Third, the Ritva (BB 69A) writes that a person can obligate himself to sell land and date trees even if he does not own the date trees. This is a much more powerful argument than the first because according to this approach, beis din not only curses the one who backs out of his commitment to sell, but will actually force the seller to fulfill his commitment. This approach has been ruled by many poskim.
A similar approach to why the seller is not allowed to renege on his commitment is based on a ruling of the Ra'avad (glosses on the Rambam Mechiro 24, 13). The Rambam rules that if a person sold land and date trees in one sale, the seller has the option to buy date trees after-the-fact, and the buyer may not void the sale with the argument that he only agreed to buy land that already had date trees. The Ra'avad argues and maintains that the seller must buy date trees if he doesn't have any.
The question on the Ra'avad is what obligates the seller to buy date trees. Mishnas Rav Aharon (Shecheinim 2, 9) explains that the principle of the Ra'avad is that when one enters into a transaction, he creates an obligation upon himself to ensure the transaction will be consummated. Thus, even though the seller did not have date palms at the time of the transaction he must buy them in order to ensure that his transaction will remain.
This principle explains a ruling concerning mekach to'us. At times the blemish that is the reason the customer can void the sale can be repaired. The issue is whether the seller is required to repair the item or not. The Ulam Hamishpot (232, 5) rules that he is required to repair it. This can be explained with the principle of the Mishnas Rav Aharon that one is required to act in order to uphold a sale. Since the seller can repair the item that he sold and uphold the sale, he is required to do so.
In conclusion: We have seen three reasons why your seller may not cancel his sale. First, he will be cursed with a mi shepora. Second, and more powerfully, according to many Rishonim – and that is the consensus approach – beis din will force your seller to carry on with the sale since he obligated himself to do so. Third, many poskim maintain that one is always obligated to uphold a transaction even if it means that he has to go out and buy a missing part. Thus, he certainly cannot back out of a sale.
