Rabbi Meir Orlian
Writer for the Business Halacha Institute
Q. I ordered a Megillas Esther for my future son-in-law, and I gave the sofer (scribe) a deposit. He committed to have it ready for Purim, but at the last minute, he called and apologized that he had been sick for two weeks and it would not be ready for Purim, but a week later. When I told the sofer that I wanted to void the purchase because I had intended to give it to the chassan during the engagement, and demanded a refund, he claimed that he was not obligated to refund my money because this situation was an oness (circumstance beyond his control). Furthermore, he said that since I would not be able to find such a megillah at this point, I should buy the one I commissioned, which can be used in the future. Who is correct?
A. Had this situation not been an oness, it is clear that the sale would be void, because you stipulated that you needed the Megillah for Purim, and the sofer failed to meet that deadline (Shulchan Aruch, Choshen Mishpat 207:5). The question is whether the oness releases him from having to meet that deadline.
The Poskim discuss a case in which a seller agreed to furnish certain merchandise for a buyer in time for a yerid (market), which is the suitable time for the buyer to sell it, and an oness prevented him from having it ready on time. The Taz (Yoreh Dei’ah 236:13) states that it is obvious that the buyer is no longer obligated to purchase the merchandise.
Generally, if a person agrees to pay a fine if he fails to have an item ready for purchase at a certain time, and an oness prevents him from meeting the deadline, he is not required to pay, due to the principle of oness Rachmana patrei (the Torah released a person who was the victim of an oness from his obligation), because he would never have agreed to pay a fine in a situation of oness. In the case of the person buying for the yerid, however, he would never have agreed to purchase the merchandise if he couldn’t resell it, even if the delayed delivery was caused by an unforeseeable circumstance. In this case, the operating principle would be oness Rachmana lo chiyvei (the Torah did not obligate a person who was the victim of an oness to follow through on a deal).
But the Taz writes that this is true only if the condition that was stipulated to was necessary for the deal to be worthwhile — e.g., the time is of essence. If it is not so significant that the seller fulfill the stipulation, then the buyer may not void the sale.
The Shach (Nekudas Hakesef ibid. and Choshen Mishpat 21:3) disagrees, stating that even if the stipulation is not necessary, it must still be met, and if the seller delays in delivering the merchandise, the buyer may refuse to accept it when it arrives, because he agreed to the deal only on condition that his stipulation is met.
The later Poskim rule according to the Shach, but they deliberate whether this ruling would still apply if it means removing money from the muchzak (the person who is currently in possession of it; Beis Meir, Even Ha’ezer 38:1; cf. Shu”t Beis Ephraim, Choshen Mishpat 46, cited in Pis’chei Teshuvah 207:2i, who maintains that it is not powerful enough to take money away from a muchzak if the condition is not significant; see Mishpat Shalom 200:7 and Mishmeres Shalom 15).
Some Poskim write that the entire discussion of the Taz and the Shach was only referring to cases in which the condition was stipulated clearly. If it was not stated clearly that the purchase was conditional on the deadline being met, but the deadline can rather be understood as an estimated delivery date, it is quite common for deadlines to be missed, and no one considers voiding the sale because of it (Shu”t Maharshag 3:108; see also Pis’chei Choshen, Kinyanim 20, note 30).
Accordingly, in your case, where the time of delivery is vital, and the sofer missed the deadline, all Poskim would agree that you may void the sale and the deposit must be refunded.
We find a similar halachah regarding someone who bought an object that turned out to be defective, but can be repaired. The Poskim rule that according to the letter of the law, the buyer may not demand a refund if the seller is willing to fix it (Shulchan Aruch 232:5; see BHI issue #317). But if the buyer made it clear that he needs the object immediately, the seller may not insist that he wait for it to be repaired (see Ulam Hamishpat 232:17; see Bach 232:4).
