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Pre-ordering merchandise and issues of Ribbit
By Dayan Shmuel B. Honigwachs, Bet HaVa’ad Halacha Center
Dave loves technology. So when he heard that Apple was releasing it newest product, the iPhone 7, he quickly tried to decide whether or not he can afford to constantly keep up with the latest. Unfortunately, he thought for too long. When he finally got through to Apple they said that the jet black 128 GB model was on backorder until late December. Dave was quite disappointed until he heard that his friend Josh had the foresight to order two iPhones, which would arrive at his home in a few short weeks. Dave immediately called Josh who told him that he was willing to sell him one if he gives him a fifty percent deposit.
When Dave told his Havruta about his good fortune, his Havruta mentioned that he may have heard something about paying for merchandise that is not yet available being an issue of Ribbit – interest. This seemed odd to Dave. What connection can pre-paying for merchandise possibly have to Ribbit?
Locking a Price
The Gemara in Bava Metzia[1] says that one may not enter into an agreement with a seller to purchase wheat before the price is set since the buyer is paying before payment is due this is considered to be a loan. If, through this advancement, the buyer would be locking in a price – even if prices are to increase before he receives his merchandise – this would be considered a benefit that the buyer is receiving in exchange for advancing the funds and it would be considered Ribbit D’Rabbanan.
However, once there is a set market-price for wheat (“Yatza HaSha’ar” – in the times of the Gemara the price of wheat would be set for the entire season at a certain time), one is allowed to place an order with a merchant or a farmer to sell him wheat even though the seller doesn’t have any wheat available at that time, if the wheat is actually available in the marketplace. Since in our situation the iPhone is not available at the time that Dave gave the money to Josh, we wouldn’t be able to rely on the concept of “Yatza HaSha’ar”, as the price may fluctuate and the iPhone isn’t yet accessible to the seller. Therefore, one would only be able to place an order if the seller doesn’t demand money up front[2].
One would also be allowed to place an order if only a small amount of money was requested by the seller – which would allow us to assume that the possible discount that the buyer may end up receiving over the market price at the time of delivery is unrelated to the fact that he gave money up front.[3] In our case, however, Josh asked for a fifty-percent deposit. This would be considered to be a substantial payment which would not allow us to assume that Dave’s possible discount is unrelated to his advancing of the funds.
Accordingly, Dave would not be allowed to place the order in this manner. However, there is still a way for Dave to lay his hands on the coveted device, while satisfying Josh’s demands. Since Josh has an agreement with Apple to sell him the phone, if Josh were to transfer that right to Dave – we wouldn’t view the deal as a loan, but rather as a sale that takes effect immediately. Thus, we would not consider the discount Dave is receiving as a perk for advancing the funds but rather as a plain discount on a purchase.
Nevertheless, this leniency would not be applicable according to all Poskim. The Shach[4] rules that this we can only rely on this Heter if a proper Kinyan (transactional act) had been executed. According to the Shach, Dave would probably not be able to place the order, because it is probably not possible to make a valid Kinyan on the right Josh has to the iPhone[5]. However, the Havat Da’at[6] and others dispute the Shach, and according to them, Josh would be allowed to sell to Dave as long as Josh does not personally guarantee that Dave receives the iPhone.
Sources:
[1] ע”ב ע”ב
[2] כ”כ בברית יהודה (פכ”ד הערה ב’), ונראה שלאו דוקא בלא נתן לו מעות אלא אפי’ אם נתן מעות כל שאין המוכר מקפיד כלל ומוכן למכור לו באותו מחיר אפי’ בלא נתן לו מעות מותר אפי’ בנתן לו מעות וכן כמדומני ס”ל לפוסקי זמנינו
[3] עי’ במשפט שלום (סי’ ר”ט) הובא בברית יהודה (שם) שכ’ דאפי בנתן לו מעות כל שניכר לעין כל שלא בשביל הסך הקטן הוא מוזיל גביה מותר ‘
[4] סי’ קע”ג ח’
[5] עי’ בש”ך (שם ובסי’ קס”ט) ומסתמא גם סיטומתא לא שייך כאן דצ”ע אם יש מנהג לקנות זכות הזה אמנם אם נתברר שיש מנהג ודאי מותר גם לדעת הש”ך
[6] קע”ג ד’ וקס”ט ל”ח, עיי”ש, שלא תלה הדבר באחריות כ”א במוכר דבר מסויים שלא שייך זה בניד”ד אבל בלא קיבל אחריות נראה שג”כ ס”ל שמותר וראיתי הובא שהנחלת דוד בשו”ת (סי’ ז’) הסכים לחוו”ד ושהמחנה אפרים כ’ כדבריו בל קיבל המוכר אחריות ובניד”ד דבלא”ה אינו אלא ריבית דרבנן נראה דמותר לסמוך עליהם