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Benefitting From the Effort of Another
By Dayan Shlomo Cohen, Badatz Ahavat Shalom, Yerushalayim
A Preemptive Purchase
In this series of articles, we will examine the position of the Torah as to benefitting from the effort (both financial and physical) exerted by another. The Shulhan Aruch states that a verbal agreement creates a moral obligation on the parties involved to honor their word, but not a contractual one. This means that Bet Din are not empowered to force a party to the agreement to honor the verbal agreement.
This moral obligation only exists where all details of the transaction have been finalized. Where one party wishes to ‘sleep on it’, or where there is still disagreement as to some of the conditions of the sale, there is no moral obligation imposed by the Torah. [There may be such an obligation imposed by society, but that is not the subject of this article.]
So too, where there is a ‘significant change’ in circumstances, between the verbal agreement and the contractual, a moral obligation does not exist. While the words of the Rama[1] suggest that even in such a scenario there is a moral obligation to honor the agreement, the custom today is to rule that where there is a ‘significant change’ in circumstances (a very subjective decision) which may include finding a much cheaper option or no longer requiring the item, the parties may go back on their word[2].
A Third Party
How about a third party who gets involved in a deal between two parties and persuades the seller to sell to him instead, for either the same price or a higher one? Is this third party morally obligated to respect the negotiations in progress or not?
The Gemara relates[3] that Rav Gidal was interested in acquiring a property, but Rav Abba acquired it before he was able to do so. Even though Rav Abba did not know that Rav Gidal was interested, the conclusion of the Gemara is that Rav Abba had a moral obligation to pass the property on to Rav Gidal (who will, of course, refund him the sum paid). Just as in the case of a verbal agreement, the obligation is moral but not contractual, and Bet Din are not empowered to force the buyer to return the property.
A Unique Item
The opinion of Rabbenu Tam is that the Gemara is only discussing a case of a purchase of real estate for its market value. However, in the case of property being sold for significantly less than its market value, or property that is unique in another way, there is not such moral obligation. Rashi disagrees, claiming that even in such a situation there is a moral obligation on a third party not to interfere.
They both agree that this moral obligation only applies where all details of the sale have been finalized. Where they have not, there is no such obligation.
The Shulhan Aruch[4] cites both opinions but follows Rabbenu Tam. This can be proved from the following Halacha, in which Maran permits a father to ‘poach’ a rebbe for his son who is currently employed by another father – if the poacher claims that this particular rebbe is unique, and only he can teach his son. The Rama writes explicitly that the custom is to follow Rabbenu Tam.
We can learn from this an essential principle in Jewish monetary law: there are situations where, even though you are not the actual owner of an item, the Torah treats you as if you are because of the effort that you have exerted in obtaining the item.
Considerable Effort
Now let’s move on to a theoretical case found in Bava Batra[5]: when one Jew buys real estate from another, the paying of cash is considered only a contractual act to seal the deal, since in all real estate purchases the buyer wants the land registered in his name. Until it is, the sale is not complete. However, when a gentile sells his land this is not so. We are therefore presented with a strange situation where a Jewish buyer of real estate from a gentile has paid cash but not yet had the land registered in his name. The gentile seller, having received cash, has now relinquished ownership of the land, while the Jew has not yet acquired it. This means that the land is currently ownerless.
Were another Jew to make an act of acquisition on that land at this time, such as building a fence with a lock (Hazaka)[6], he would acquire the land for himself.
This case would seem to hinge on the above disagreement between Rashi and Rabbenu Tam, whether it is morally appropriate to interfere with a deal involving a unique item. Here too, since this land will never again be available for free, it would seem to be permitted to grab it according to Rabbenu Tam, and morally objectionable according to Rashi. Yet, Rabbenu Tam does not argue with Rashi in this case, and agrees that the third party who acquires the real estate for himself has acted immorally[7]! The obvious question is: why is this case different?
The Hattam Sofer suggests that the reason is because here not only was a great amount of effort exerted by the buyer, but it was also he who ‘created’ the situation which enabled the third party to be able to acquire the land.
From here we see an addition to the above-mentioned principle. Whenever a larger amount of effort was exerted, even Rabbenu Tam agrees that in the case of unique property the one who invested the effort has the rights to the property (at least on a moral level).
Minimal Effort
We must now examine another case. The Mishna writes about two friends who were walking down the street together, and one of them spotted a hundred dollar bill on the sidewalk, and dived on it, covering it with his body to prevent anyone else from acquiring it. If his ‘friend’ were to slip his hand underneath and take the bill in his hand; it is this second guy who has acquired the find! The reason is because the guy who spotted it – while he certainly showed by his action that he is interested in acquiring the find – did not make any actual contractual and binding act of acquisition (Kinyan), while the second guy did, by picking it up in his hands.
In this case, the second guy is considered immoral by either Rashi or Rabbenu Tam, although Rashi’s opinion is that in the case of a unique item that one was about to purchase, it is immoral of someone else to acquire it before him.
The answer, explains the Hattam Sofer, is because the amount of effort exerted by the first guy who spotted the bill was minimal. Therefore, he has no special rights over the second guy.
We can now identify four levels of effort, each with a different moral obligation:
- Taking a unique find before the guy who spotted it – not immoral according to all.
- Acquiring a unique item before another prospective buyer – immoral according to Rashi but not according Rabbenu Tam.
- Acquiring a non-unique item before another prospective buyer – immoral according to both Rashi and Rabbenu Tam.
- Acquiring a unique item before another prospective customer where the latter had exerted much effort and created the opportunity for the third party – immoral even according to Rabbenu Tam despite it being a unique item.
We see from here four levels of effort exerted by a potential acquirer, each with different halachic repercussions. Our journey, however, is not over, and in the next article we will discover three more levels before we can decide into which falls the case of downloading a song from the internet…
Sources
[1] H.M. 204:11
[2] This was confirmed to me by HaRav Naftali Nusbaum shlit”a and HaRav Reuven Abudi shlit”a.
[3] Kiddushin 59a
[4] H.M. 237:1
[5] 54b
[6] See H.M. 192
[7] See Rama H.M. 194:1