Q. Reuven bought a house from Shimon, stipulating in the contract — which was written in a manner that is binding in Halachah — that Shimon must secure a certificate of occupancy within six months of the sale.
When the six months passed and the certificate of occupancy had not been arranged, Reuven came to our beis din to ask that Shimon be prevailed upon to take care of the matter immediately. When Shimon heard about this, he agreed that since he hadn’t met the stipulation, the sale is void. But Reuven claims that the stipulation was meant to protect himself, the buyer, not to enable the seller to renege on the sale if he didn’t fulfill his commitment. Shimon acknowledges that the stipulation was truly made to protect Reuven, but says that the bottom line is that it wasn’t met, and the sale is therefore void.
Who is correct?
A. The Shulchan Aruch (Even Ha’ezer 38:36) rules that if a man is mekadesh (betroths) a woman on condition that he will give her a certain amount of money, and he then declares that he does not plan to fulfill that commitment, beis din does not force him to fulfill it, and the kiddushin is void. But if the woman says that she is mochel (forgoes) the money, then the kiddushin is finalized.
There are several opinions in the Rishonim on how to view a contractual stipulation that was overlooked or forgiven (see Shu”t HaRosh, 35:9 and Chazon Ish, Even Ha’ezer 53). The Rashba (Gittin 74b) writes that in most cases, for the agreement to be valid, these stipulations must actually be fulfilled, and the party receiving the benefit of the stipulation cannot be mochel it. Only if someone stood to derive a financial benefit from the fulfillment of such a stipulation is he entitled to forgo it, because he may say, “I consider it as though I received that benefit and returned it.”
The Ran (Kesubos 33b in the Rif folios; see also Tosafos, ibid. 73a) writes that if a stipulation is to a certain party’s benefit, we do not automatically assume that that person is going to be makpid (insist) that it be fulfilled and void the transaction if it is not; we must wait to see whether he is makpid. (If the stipulation was made in order to cause pain to the other party — such as a stipulation regarding a get — then mechilah does not take effect, because it is obvious that the stipulation was made deliberately).
According to the latter approach, even if the stipulation had nothing to do with money, the party that stands to gain from its fulfillment may be mochel it.
Nevertheless, the Beis Shmuel (38:57; cf. Beis Meir ibid.) writes that there is a difference between money-related stipulations and all others: In regard to other stipulations, if the beneficiary of the stipulation is makpid, at first, that it be fulfilled, then even if he later changes his mind and is willing to be mochel, the action was already nullified. But if the stipulation relates to money, then even if, at first, he is makpid, he may later change his mind and decide to be mochel, because he can still consider it as though he received the money.
The Ketzos (243:2, and in Avnei Miluim 38:15) disagrees and writes that even if the stipulation relates to money, once a person said he was makpid, the original kinyan formalizing the deal is void, since the condition wasn’t fulfilled, and the beneficiary cannot change his mind (see Moadim u’Zmanim 6:44). Apparently, the Ketzos maintains that the way a stipulation works is that if the party benefiting is makpid on its being fulfilled, and it isn’t, then the original kinyan is void.
The Nesivos (243:4) also disagrees with the Beis Shmuel, maintaining that even if at first a person was makpid, as long as he hasn’t declared that the kinyan will be invalidated if the stipulation is not met, he may still change his mind and consider it as though he had received the benefit. If he did make it clear that he wished to invalidate the kinyan if the stipulation was not met, he may not change his mind later on if the other party wants to void the sale. (The Nesivos [241:11] writes, however, that if the deadline for the condition has not yet arrived, and the person said that he doesn’t plan to fulfill the condition, but the beneficiary said that he was makpid, he may change his mind and say that it is as though he received what he was entitled to, since the deadline has not yet arrived.)
In light of the above, when Reuven insisted that Shimon procure the certificate of occupancy within six months, and Shimon failed to do so, then, according to the Ketzos, his insistence invalidates the original kinyan and Shimon may renege. The Nesivos, however, interprets Reuven’s insistence as an effort to obtain the certificate of occupancy from Shimon, but he may still say, “It’s as though I received it, and no longer insist on getting it,” and the sale will remain in effect.
We should add that although the question stressed that the stipulation was made in accordance with Halachah, we must nevertheless read the contract carefully, because it may have been phrased not as a stipulation (tenai), but as an obligation (his’chayvus) that the seller must fulfill, and if he does not fulfill it, then the buyer (and not the seller) may choose to void the contract. If that is the case, then Reuven’s insistence on receiving the certificate of occupancy does not give Shimon the right to renege on the sale.
Rabbi Meir Orlian
Writer for the Business Halacha Institute
