Q. Mrs. Friedman called her neighbor, Mrs. Schwartz, with an urgent request. She had ordered an expensive watch, and due to unforeseen circumstances, the delivery was delayed. Now the delivery company called to inform her that the package would arrive the next day, but she had left for Florida, so she asked Mrs. Schwartz to accept the delivery on her behalf and take it into her house for safekeeping. As the discussion continued, Mrs. Schwartz expressed interest in buying the same watch, and Mrs. Friedman decided to sell it to her at cost price, figuring that she could order another one just before her return home.
When she tried to reorder, however, she discovered that the entire supply had sold out. Upon her return home, Mrs. Schwartz excitedly handed her the watch to show it to her. Mrs. Friedman was far from happy, however. “Since my plan was to order another watch,” she said, “and I was unable to do so, I would like to void the sale to you and take this one for myself.”
“But you already agreed to sell it to me!” Mrs. Schwartz protested.
Is Mrs. Friedman halachically permitted to void the sale, considering that the watch was already in Mrs. Schwartz’s possession?
Halachic Analysis
A. The first question to consider is whether Mrs. Friedman was in a position to sell the watch when she agreed to do so, considering that it was not yet in her possession, which makes it akin to a davar shelo ba l’olam (something that has yet to come into existence), which cannot be sold (Shulchan Aruch, Choshen Mishpat 209:4). As such, even though the item came into her possession afterward, the sale that occurred beforehand would not appear to be valid without a new kinyan.
Although the delivery was dropped off in Mrs. Friedman’s yard, which is a secure location (chatzeir hamishtameres) that was koneh (acquired) it on her behalf, that does not make her sale to Mrs. Schwartz valid, because when the conversation took place between them, the watch had not yet been delivered. Therefore, because the watch is currently in Mrs. Friedman’s possession (because Mrs. Schwartz handed it to her), it would seem that she may keep it by claiming that there was never a valid kinyan transferring ownership from her to Mrs. Schwartz.
In reality, however, the watch still belongs to Mrs. Schwartz, because the halachah is that when someone sells a davar shelo ba l’olam, although the sale is not valid at that point and either party may renege on the sale agreement, if the item later reaches the buyer before the seller reneges, it belongs to the buyer (ibid.).
The reason for this, explain the Rishonim, is that as long as the seller has not reneged, we assume that he would like to fulfill his earlier commitment to sell, so that he should be considered a trustworthy person. The Shach (ibid. 5) writes that this is true only if the seller knew that the item already reached the buyer and did not react, in which case we assume that he decided to follow through on the sale. Other Acharonim rule, however, that even if he didn’t know that the item reached the buyer, if he did not renege, then he tacitly agrees to the sale and it is final (see ibid. 66:17 & 126:22, and Ketzos Hachoshen 123:1).
In our case, then, because Mrs. Schwartz already received the watch, and Mrs. Friedman was aware of that, according to all the aforementioned opinions, Mrs. Friedman has no right to the watch.
If Mrs. Friedman stated clearly, however, while discussing the sale of the watch, that she was selling it because she was going to order another one for herself, then it is possible that she may void the sale on the grounds that it had been made based on an umdena (presumption). Whether she may do so hinges on a debate between the poskim whether a person’s declaration as to why he is selling an object can be invoked as grounds to void the sale if that reason does not ultimately materialize (see Shu”t Chasam Sofer, Choshen Mishpat 102; Pis’chei Teshuvah 207:5; Nachlas Tzvi ibid.; and BHI #680).
