By Rabbi Yair Hoffman for 5tjt.com

Dear Rabbi,

I read your articles quite often and enjoy the clarity.  My name is Reuvain (fictitious).  We are trying to purchase a home in, shall we say, a very competitive real estate market.

We did everything right.  My wife and I got pre-approved on a mortgage.  We made an offer on a house being sold by Shimon (fictitious).  It was accepted.  But before we actually signed the contract – someone else (Levi – not fictitious) offered a cash deal with no need for a mortgage having to be processed.   Did Levi violate halacha?  Did Shimon violate halacha? Please let me know.

Dear Reuvain:

We are going to call your case an NDD – a Near-Done Deal and question whether or not a prohibition called AHB (ani hamehapech b’chararah) applies to this case.  This first paragraph is not intended to razzle-dazzle you with our new acronyms  – it is rather an attempt to better pinpoint in your mind where these halachos are to be found.  They are found in the Choshain Mishpat section of Shulchan Aruch in Siman RaZLe – or raish lamed zayin or Siman 237 – and more specifically –  sif aleph.

THE CLASSIC CASE

There is a well-known halacha called “Ani Hamehapech b’chararah” – or AHB – which means, that a poor person was looking at a baked item, and someone came along and snatched it out from under him.  It is figuratively applied to cases of a third party interfering in a near-done-deal and the third party is labelled a rasha – an evil-doer.  This is true – even if no kinyan has been made to further along the transaction.  It is also true even if Levi was completely unaware that you were negotiating and that you were first. This is all clear from the illustration involving Rav Gidel in the source Gemorah of Kiddushin 59b.  The prohibition applies of AHB applies to the third party – and not to the seller of the property.

An NDD means even when no Halachic Kinyan was made between the buyer and seller. If a Kinyan was made, then neither the seller nor the buyer may back out without the agreement of the other party.  [See the Ramah and the Nesivus in his Chiddushin #8].

CASE MAY BE DIFFERENT

Your case, however, may be different than the classical case, because it does offer an additional convenience to the seller in that he doesn’t have to wait for a mortgage.

Now you may ask – why would an “additional convenience” make the case any different?  We know that the prohibition applies even if the third party is offering a higher price than what the buyer and seller have agreed to!  And a higher price is also an “additional convenience” – isn’t it?  So what is the difference?  This is a good question – we will examine this point later in the article.  Let’s take note that we didn’t say that it was definitely different – we said that it may be different.

FIVE EXCEPTIONS

We are now going to list five exceptions.

1. All of this is even true even if the buyer and seller have not reached a definite price – but in their minds they think that they are very very close to reaching agreement. If, however, one party is not of the frame of mind that they are close to reaching an agreement – then the prohibition of ani hamehapech does not apply.
2. If the negotiations broke off, or have reached a “deal-breaking” impasse – then buyer #2 is allowed to step in (see Prisha cited by the Pischei Teshuva (237:3).
3. Most Halachic authorities are of opinion that the prohibition only applies if the second buyer would be able to purchase a similar item or property for a similar price. However, If the property is being sold for a much lower price than normal – then it is only a midas chasidus , a worthy act, to avoid interfering and offering a bid on an NDD. This exception is the one most people use to justify their actions.

There is another caveat here, however. If the second buyer is poor, and the first buyer is rich, and the first buyer could purchase a similar house or property – then most opinions hold that the second buyer is permitted to interfere in the negotiations, and it is not even a Midas Chassidus to refrain from doing so. This is the view of many Rishonim, and that of Rav Karo, according to both Rav Yaakov Lorberbaum (Nesivus Biurim 2 in the back of the SA) and the Ramah. The Shach, however, argues – citing Rashi and the Ramban.  It is, therefore, proper to still be stringent.

4. Another exception is when the seller offered to sell it to someone else while still negotiating with the first person and then agreed to the first person’s price. The second guy may make an offer under such a situation.  Chazal, however, do not look kindly upon the seller in such a situation.  This is called ARCNH – ain ruach chachomim nocha heimeno – the spirit of the sages are uncomfortable with him – since he did make a verbal commitment to sell it to the first person.  Both the SMA (CM 386:10) and the Avnei Naizer (Responsa CM #17) write that there may be ARCNH – but no AHB in this case.  What if the second offer was significantly higher than the first offer?  The Ramah in Shulchan Aruch (CM 204:11) cites two opinions, the first one states that there is no problem of ARCNH.  The second opinion states that it is still a problem of ARCNH.  The Ramah is stringent, but the Vilna Gaon (204:18) says that there is no problem of ARCNH when the amount is very significant – 16.67 percent of the price. It is preferable to follow the Ramah – especially when there may be issues of Chillul Hashem.

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5. Another exception is when either the buyer or the seller had seemingly agreed, but one wanted to further discuss it with family or friends. The Pischei Teshuvah (237:3) states that this does not constitute agreement and AHB does not apply.

CASH OFFER VERSUS BUYER WITH A MORTGAGE

Now let’s address your specific issue.  There is a big tzaddik in Eretz Yisroel named Rabbi Yaakov Grossman from Migdal HaEmek.  What is not so well-known is that his father, Rabbi Yisroel Grossman zt”l, was a remarkable talmid chochom who was a friend of Rav Elyashiv zt”l and Rav Shlomo Zalman Auerbach zt”l.

He writes in Halichos Yisroel Siman 45 regarding a case of a third party making an offer to an owner who is renting an apartment out but has not yet made a kinyan.  The third party has less kids than the person negotiating and there will likely be less long-term damage to the owner’s apartment. Is there AHB there?  Rav Grossman concludes that there is not – because of the additional convenience here to the seller.   The convenience is that his apartment would be spared from collateral damage of additional kids.

So the question is twofold: Do we rule like Rav Grossman zt”l?  Also, is this case of getting to sell without having to wait on the buyer’s mortgage also considered an “additional convenience” similar to that of sparing his apartment or is it just a monetary benefit which would be subject to AHB?

A POSSIBLE ANSWER

There is another debate in regard to the time parameters of “a General Monetary Loan.”   The Gemorah in tractate Makkos (3a) and Shabbos (148a) indicate as follows:  A general monetary loan is for 30 days and, unless stipulated otherwise, the person loaning the money cannot ask for it earlier.  The question is, do these Gemorahs also apply to items that are loaned or are they limited to money, but do not apply to money?  This is a debate between most rishonim versus Rabbeinu Tam who holds that it applies to all items as well. [We rule like the other Rishonim]

EXPLANATIONS FOR THE DISTINCTION

It seems that there are at least three different explanations for the difference between money borrowed and items borrowed and that these different explanations may shed light on our second question.

• The Meiri (See Shabbos 148a) explains that the owner generally uses his items regularly, therefore, it is not the general custom to hold onto another person’s item for thirty days.  This is certainly understandable when it comes to items. This is not the case, however, when it comes to moneys that were lent.  Therefore, money being lent has a thirty day period.  According to the Meiri, the case of Rav Grossman would not be comparable.
• The SMA (CM 73) and the Ritva (Shabbos ibid) explain the distinction as laying in the fact that moneys borrowed are spent (kesef l’hotzaah nitnah) and it takes time to get the coinage back.  This is not the case in regard to a borrowed item, where it is still in the immediate possession of the borrower.  According to the SMA then, Rav Grossman’s exemption might apply here too.
• The Gerrer Rebbe in his Sfas Emes (Shabbos 148a), however, gives another explanation. He writes that when people use items, they lose value in that they become used.  The thirty days would therefore not be extended to the point to allowing the borrower to use that item for thirty days.  Moneys, however, do not get “used up” so to speak.  According to the Gerrer Rebbe’s explanation, Rav Grossman’s exemption would not be applicable here.
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CONCLUSION

Please keep in mind that one should always consult one’s own Rav or Posaik in regard to any practical application of Halacha. It is this author’s view that we should be stringent in such cases. Shalom is always a key factor in business relations.

The author can be reached at [email protected]

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