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Making a profit off what you don’t own / by Rabbi David Markin
Case: Reuven held two tickets to a sold-out event – which did not belong to him – with a face value of $50. Upon seeing the tickets in Reuven’s hand, Shimon, who was looking to attend the event, readily offered him $150 for per ticket. Reuven accepted the offer and did not inform the prospective buyer that the tickets weren’t his. He then went back to Levi, the original owner of the tickets, who was not planning to use them – and offered to buy them at $75 apiece. The owner agreed and sold him the tickets.
Subsequently, Reuven learned that the tickets could now be sold for $300 each. He realized that he would have been able to fetch $300 per ticket had he not sold them originally to Shimon, and therefore wanted to get back those tickets from Shimon to resell them at the current market price!
His claim was a simple one. At the time he “sold” them, the tickets weren’t his, and therefore the entire sale (Mekah) wasn’t a real sale. Now, that the tickets actually belonged to him – having paid Levi, their owner, the $75 he agreed to – Reuven wanted to reclaim them from Shimon and resell them for $300.
Answer: A similar case is discussed in the Gemara in Bava Metzia[1]. The Gemara discusses a case where Reuven sells Shimon a stolen property, guising as the owner. Reuven then goes to the real owner, which he stole the land from, and buys the land properly in accordance with the law. The Gemara states that since the intention of Reuven – who sold the property while it was still not his – was to buy it on behalf of Shimon, his customer, therefore the land is considered to be acquired by Shimon, even though the sale was conducted before the land actually belonged to the seller.
The Gemara gives two reasons why the sale of the land from Reuven to Shimon is effective. The first reason is because the seller does not want to be accused as a thief by his customer, would the sale not go through, and the second reason is that Reuven wants to maintain a reputation of being trustworthy. However, claims the Noda B’Yehuda, these two reasons do not satisfy the basic problem with this entire process, and that is that Reuven does not actually own the land he is selling! How can any of these reason effect this fictitious sale?
The Noda B’Yehuda quotes some commentators who maintain that this Gemara is implying that if the seller has strong reasons to effect a sale, then the sale can be effective – even if the item is not yet owned by the seller or not even in existence at the time of the sale (referred to in Halacha as a “Davar Shelo Ba La’Olam”). However, the Noda B’Yehuda contends that such an explanation is absolutely impossible. He understands that the Gemara must mean that although originally the sale was not effective whatsoever, nevertheless, later – when the Reuven buys it from its original owner on behalf of his customer – that acquisition is credited towards the customer, as Reuven is automatically mezake – meriting – his customer the rights to this land, for the reasons mentioned in the Gemara.
In his Hiddushim on the Shulhan Aruch, Rav Akiva Eiger cites the Tashbatz who maintains that this ruling of the Gemara applies not only to real estate but also to Mitaltelin – moveable property, i.e. merchandise. In both instances if the original sale was conducted before the “seller” actually owned the item, when he in turn buys it from its original owner, the sale is automatically credited towards his customer.
What if – at the time of the purchase from the actual owner – Reuven states explicitly that he has no intention of acquiring it on behalf of Shimon, his original customer? There are two opinions in the Shulhan Aruch concerning this question, which are based on the aforementioned discussion concerning the logic behind the Gemara’s ruling. The first opinion, quoted by the Maran, maintains that an explicit stipulation by Reuven would effectively block Shimon from acquiring the property. The Rema however states that regardless of his protestation the land is now automatically acquired by Shimon.
It would seem that our case of the phantom ticket sale, would be subject to this same discussion. Clearly, according to the Rema, once Reuven pays the original owner for the tickets, we can assume that his intention was to buy it in a way that will automatically be credited to his customer. Thus, Shimon now owns the tickets for which he paid $150, and Reuven has no right to retroactively nullify the sale and resell the tickets at the higher price they can now fetch. Even according to the Maran’s opinion, since Reuven never stipulated that he is acquiring these tickets solely on his behalf and not on behalf of his customer, we must then assume that he is acquiring them on behalf of Shimon, and therefore he may not reclaim the tickets to resell them.
[1] דף ט”ז