Guide to Buying and Selling a Car According to Halacha - Buying a Car from a Debt Collection Auction

00:02 Speaker 1 You’re listening to “Lema’an Yishme’u,” a podcast from Machon Halacha Chabad.

00:09 Speaker 2 We’re working through a guide to buying and selling a car. The idea isn’t just about cars; it applies to other things too, but a car gives us a way to look at it. For example, today’s topic is stolen property and repossession, and a car is different from other things. A house has its own laws; movable property and cars have small differences that change the picture. Last time, for example, when we spoke about repossession, we mainly discussed a house, with the laws that apply to it. When we talk about a car, things suddenly change. We’ll see two more major differences between movable property and a house. So, our class has two parts. First: may you buy something that is stolen, or that you suspect might be stolen? Where does that come up? A bit less with cars, but it can happen: you find a car at a bargain price, you come to see it, you look at the owner, and you realize something here... There’s a reason it’s being sold so cheaply.

01:21 Speaker 3 It could be anything.

01:22 Speaker 2 Yes.

01:22 Speaker 3 There’s someone [unclear]. If he isn’t the owner—

01:26 Speaker 2 Right, right.

01:27 Speaker 3 He can’t say that.

01:29 Speaker 2 Right, right, you’re correct. It’s not so simple, but sometimes there are various parts inside. You might buy from a garage that’s known for stealing people’s parts. A new car comes in, and the mechanic puts an old part in it and takes the new one, or something like that. That doesn’t happen so much here. But you might also go to buy in other areas. Say there’s someone you buy from off the books, cheaply. People here still do that. People used to go to those areas for dental work and things like that, but even now someone here... Yes, someone here told me, “You want to repair your car? Let’s take it over there for you, for a quarter of the price.” People go in and get things done. For example, someone goes into those areas and buys a car. Now you’ll say, what’s the problem? An Arab stole it from another Arab—what do I care? First of all, he might have stolen it from a Jew, not an Arab. But even if an Arab stole from an Arab, you may not benefit from it, because it’s stolen property.

02:31 Speaker 3 Stealing from a non-Jew.

02:31 Speaker 2 Yes, stealing from a non-Jew. Even when a non-Jew steals from a non-Jew. It’s not only that a Jew may not steal from a non-Jew; a non-Jew may not steal from a non-Jew, and you may not benefit from stolen property, even something a non-Jew stole from a non-Jew. So, first, there’s the car itself—whether you suspect it’s stolen or know for certain that it is. And second, there are parts. You come to a garage, you know it sells parts cheaply, and it has a reputation for not doing things quite properly. When is it permitted, and when is it forbidden? We’ll cover that very briefly. Then the next part is buying a repossessed car. Someone put up his car as collateral, or perhaps he didn’t, but they simply took all his belongings, including the car. So, on the first part, stolen property: look at source number one. The Alter Rebbe says: “It is forbidden to buy from a thief an item he stole, and it is a grave sin, for one thereby supports people who commit transgressions. Of this it is said, ‘One who shares with a thief hates his own soul,’ and one causes him to commit further thefts.” There are nuances in the Alter Rebbe’s wording here: he takes the Rambam’s formulation and changes the order. There’s a lot to discuss, but for now we’re taking a shorter approach. In general, then, you may not buy a stolen item. It supports people who commit transgressions and causes the thief to steal again. Why does it cause him to steal again? Because if he can’t find a buyer, he won’t steal. If nobody buys from him, he won’t steal more. “Even though he could take it somewhere people don’t know he’s a thief.” You might say: well, that settles it. He’ll go somewhere he isn’t known. He’s known here, but not elsewhere, so he’ll go elsewhere. The Alter Rebbe says: “That is not so readily available to him, and if everyone who knows him and recognizes him refuses to buy from him, he will not steal as much. Therefore,

04:25 Speaker 2 anyone who knows must not buy from him, and likewise one may not buy from a robber.” In other words, if everyone around him who knows him refuses to buy, things will be much better. It will be harder for him to sell, and you’ll reduce the amount he steals. He’ll know it isn’t worth stealing. When is it permitted? Only if you intend to help the owners by returning the item to them, and they will reimburse you. And provided that—

04:51 Speaker 4 You buy it from him.

04:53 Speaker 2 In order to return it to the owners. So you get your money back. How?

05:00 Speaker 4 The money.

05:00 Speaker 2 He’ll collect the money from them, yes, yes—the money he paid. And the Alter Rebbe continues: provided that—

05:07 Speaker 4 It’s a mitzvah. That’s a mitzvah.

05:09 Speaker 2 A mitzvah, yes.

05:09 Speaker 4 You fulfill your obligation.

05:10 Speaker 2 Yes. “And provided that the owners could not have recovered it themselves if he had not bought it.” They could say to you, “What favor did you do me? You made things worse! I could have gotten it back from him for free, and you went and paid him. Why is that my fault?” We’re talking about a situation where they couldn’t recover it, and he found it and bought it. This will also come up shortly when we discuss repossession. If you buy the car in order to return it to its owners, that can be permitted. Although, generally, if you can buy it on their behalf, they can also buy it themselves. It’s an auction open to everyone. You should even give the owner first priority. So that’s when it is definitely stolen. You know for certain the car is stolen. An Arab might tell you, “Yes, it’s stolen.” He thinks there’s no problem with that, but you may not buy it from him. Now, what if you don’t know it’s stolen? It isn’t certain. As we said earlier, there are rumors about the person. I remember there was a bicycle shop here—or someone selling bicycles out of his yard—and there were rumors that he stole some of them, or perhaps all of them; I don’t know. Okay? The question is whether you may buy from him. The Alter Rebbe says: “Even if it is not known that this particular item was robbed or stolen, since the seller is a known robber or thief, it is forbidden to buy from him anything that there is reason to suspect was robbed or stolen.” If he’s a known thief, and we know, for example, that the bicycles he has are only stolen—that he doesn’t deal in things through proper channels, only behind the scenes—then you may not buy from him. Unless it is known that he also has

07:01 Speaker 2 similar items of his own. In that case, one may buy from him or benefit from the item for free. If it isn’t definitely stolen because he has... Now, it’s not just that you aren’t sure. You know he has some items that he acquired legitimately. If you know nothing, you’re still in doubt, and you may not benefit from it. If you know at least some of his stock is legitimate, you can attribute this item to that stock. You say, “Presumably I’m buying a legitimate one.” You have grounds to attribute it to that. “Even if he has only a few similar items of his own and many similar items that were robbed, we adopt the lenient assumption that this one is his.” If he has even a small number of that type of product that are his, and many that were stolen, I can assume I’m buying a legitimate one, so it’s permitted. Accordingly, even if that garage apparently steals parts from people, it also has parts that—if it’s known, yes? If it’s known that it also does legitimate work, that it doesn’t steal absolutely everything—then one can assume this part is probably fine, probably legitimate.

08:17 Speaker 4 As an extra measure of piety?

08:20 Speaker 2 It isn’t mentioned here. An extra measure of piety isn’t mentioned here; it doesn’t say that. An extra measure of piety—once a person... Now, another point. Even if something is definitely stolen, or the seller is a known thief and all that, if the item has undergone a change, or the owner has despaired of recovering it, or it has passed into another person’s possession, then you can buy it.

08:40 Speaker 4 Despair of recovering it.

08:42 Speaker 2 No, yeiush or a change of ownership—meaning a transfer of ownership. In other words, the owner gave up hope of recovering it, and the thief already sold it to someone else, so you’re buying it from someone else. It changed hands, ownership changed, and there was also yeiush, so you can now acquire it. What about a change to the item itself? The change has to be substantial. For example, someone who dismantles cars for parts—that’s a change; he took the car apart. Now, if he stole it and then took it apart, I’m not sure whether that counts as a change. Apparently it does, but it isn’t a complete change, because you can put it back together. It isn’t a change that can’t be reversed; it can be restored to its original state. So if the person is merely a known thief, and you’re not certain this item was stolen, even that kind of change can help—a change that can be reversed. But if you know for certain it was stolen—he tells you, “It’s stolen”—then you need a complete change for it to help. Okay, that’s the general picture regarding stolen items or items that might be stolen. Now let’s get to the more interesting part: enforcement proceedings. As we discuss enforcement proceedings, we’ll also learn a few principles relevant to law and legal rulings more broadly. We’ll soon encounter the concept of asmachta and the concept of custom, both of which are very relevant here. So first, how do enforcement proceedings work, and what do we need to check, so to speak, before buying? There are three parts. First: why was his car taken? There was some debt to begin with that led to his car being taken. How did that debt arise?

10:32 Speaker 2 We need to check how it arose. What are the possibilities? He might have owed someone money, but they would still need some kind of court order. So the creditor went to court, and the court ordered him to pay. That might be based on a genuine debt, or it might be based on interest that may not be charged, compensation for emotional distress, or all sorts of things a court awards on the basis of legal considerations that are not in accordance with Torah law. Another possibility is a beis din—even a private beis din, not necessarily an officially recognized rabbinical court—where the parties sign an arbitration agreement authorizing it to rule between them. If the debtor doesn’t pay, the person owed money can take that arbitration ruling to enforcement proceedings. He goes to a court to have it confirmed, but the court didn’t issue the ruling; the beis din did. He gets it confirmed in court, proceeds with enforcement, and, for example, they take the debtor’s car. So we can already see that it depends on how the debt arose. It may have arisen in a valid way, through a beis din, or not in a valid way—through a court ruling, interest charges, and the like. Another possibility, the most common one, is an agreement with a bank. Say the customer took out a mortgage—actually, a mortgage is less relevant: they wouldn’t take his car; they’d take his apartment. But say he took out a bank loan and isn’t repaying it. At some point they freeze his account and begin seizing his assets. If he has no house, they take his car. Or he does have a house, but the car is worth less, and they aren’t going to sell his house right now, so

12:12 Speaker 2 they take his car. What do we call this situation? Is it valid or not? At the first stage, it would seem to be valid, though we’ll see that there are some complexities here. Why would it be valid? Because it didn’t come out of nowhere. It’s not as though he simply owed money and people suddenly showed up and took his car. Before he opened the bank account, he signed documents. They gave him documents to sign, and he didn’t read everything he was signing. But according to halachah, you signed. You could have asked them, “I need time. Let me take this home, I’ll spend a week going through it, and I’ll bring it back signed.” Read it. You trust the bank and assume its terms comply with banking regulations and so on. You agree to everything written there. Among other things, it says that if a person doesn’t pay, his property can be taken through enforcement proceedings and so on. You agreed to that. So that’s straightforward: if the debt arose through the bank, that would be all right. If the bank takes him to court, it gets more complicated, because a person’s agreement to have a case heard in a secular court does not automatically make that permissible; there is considerable disagreement about it. That’s the first stage. The second stage: when they take the debtor’s assets, what do they do? What do they leave him with when they take things from his home? They took his washing machine, his bed, and his car. He needs that car for work, and now, without it, he loses his job. In halachah, there’s a principle called mesadrin lebaal chov: before taking a debtor’s possessions, you must first make provisions for him, leaving him what he needs to live. Yes, right. Yes, to work, and so on. So the question

14:00 Speaker 2 is: what does the law say about this? Is that middle stage of the process—first, how did the debt arise; second, is the procedure for taking his possessions in accordance with Torah law? Are they taking them in the proper way? Third, how do they sell them? Do they sell them in the way the Torah requires or not? So let’s examine this in the sources. We’ll start with source number two, on the first stage: how did the debt arise? We said it could be through a court, a beis din, or a bank. Now, regarding a court, perhaps we could say—if not in Israel, then at least abroad—that dina demalchusa dina, the law of the land is law. The Torah recognizes the law of the governing authority. In Israel there are major debates and disagreements about whether dina demalchusa dina applies. So let’s speak about outside Israel, where most halachic authorities say it does apply. The question is: to what? To which details? Can we say that because a court ruled in this case, dina demalchusa dina applies? The Rashba says—let’s look at source number two: “Regarding the principle of dina demalchusa dina that you mentioned: they certainly said it only where there is a royal decree, and in matters that belong to the laws of the kingdom. They said dina demalchusa, not dina demalka.” Let’s skip a few lines, to the fourth line from the bottom: “But the rulings made by secular courts are not laws of the kingdom. Rather, the courts judge on their own, as they find in the judges’ books. For if you do not say this, you have, G-d forbid, nullified the laws of Israel.” What he’s saying is that the expression is dina demalchusa, the law of the kingdom, not dina demalka, the law of the king. What is a kingdom? It has laws, an orderly legal system. So if American law establishes a particular rule, fine—dina demalchusa dina. But if a court decided something based on what? This precedent, that precedent—

16:02 Speaker 2 one judge slept on it overnight and came up with one idea, while another suddenly said something else. Decisions based on all sorts of things—as he puts it, “as they find in the judges’ books.” They find one precedent here and another there. Those aren’t statutes; they aren’t the law of the kingdom. So, first of all, a court ruling does not count under halachah as something on whose basis you can collect a debt. That’s true even outside Israel, and all the more so in Israel. So if you hear that a car is being put up for sale, and you know whose car it is and why it was taken, and you know it was taken because of a court ruling, then buying it is forbidden. Under halachah, that isn’t considered a debt. I don’t know who the... If you don’t know the circumstances, we’ll soon see what the general rule is. Now, source number three deals with the middle stage. When they take his possessions, what do they leave him? Here we’ll see that the law is more generous than halachah. I won’t read all of it. The halachah here, in the Shulchan Aruch with the Rema, source number three, says—in the third line: “He shall retain for himself only enough food for thirty days and clothing for twelve months, but not for his children or his wife.” They leave him only his own clothing for a year and food for thirty days. Now, what’s interesting here—and I mentioned this last time too—is that it says, “He shall retain for himself.” What does that mean? Is he the one who decides? There’s a beis din handling the matter. Rather, as we’ve said many times, this concise work was not written for a beis din; it was written for the individual. All of this is from Choshen Mishpat, all the laws

17:43 Speaker 2 For a private individual. So here we’re talking about a private individual who says, “I haven’t been summoned to a beis din. I’m repaying a loan now. How much can I keep for myself before—before I’m taken to court?” So he says here that a person may keep only what the rules allow. He needs to keep enough food for thirty days, a year’s—thirty days. In other words, whenever he has money, when he gets paid for his work, he checks: Do I have food for thirty days? Do I have enough clothing for a year? Fine. He has to give everything else. He is obligated to give it. Obligated. Yes. Then he goes into detail. The whole house? The Alter Rebbe says even a dwelling, yes. He says, “And needless to say, a dwelling,” later on here. There is a dispute among the halachic authorities about this. He says even a dwelling. Ah, even a Torah scroll, he says; even a Torah scholar must sell his books. He can’t study Torah. There’s nothing to be done—sell the books. You owe someone money. First pay off the debt, then study Torah. That’s how it is. But what do they leave him? They leave him tefillin, for example—things he needs to fulfill a mitzvah. And they leave him work tools: two of each kind of tool, a hoe and so on, so that he can work and repay the debt. Now the law is much more generous than that. The law leaves him work tools, clothing and household items for the family—even a pet. It lets him keep a pet. It allows a bit more. So on this middle point, what they take from him, we seemingly have no problem. If they took his—

19:28 Speaker 2 car, that means they checked and saw he didn’t need it for work, so they took it. In Israel? In Israel. I’m talking about Israel. In Israel they don’t take it if he needs it for work, because then he wouldn’t be able to work. They check. If he works at a factory in town and can take the bus, they’ll take it. But if he needs the car for work, they won’t take it. Though if it’s an expensive car, they might talk about getting him a cheaper car and take this one. So that’s the second stage. The second stage is fine. Now the third stage: how do they sell it? Afterward we’ll move on to the practical side. How do they sell things through the Enforcement Office? I know about apartments; I don’t know about cars. With apartments, they hold two rounds of bidding. First, they bring in an appraiser to determine what the apartment is worth. Then there’s a bidding round. The person who offers the highest bid is supposed to get it, provided the bid isn’t lower than the appraiser’s valuation. Now, if everyone bids below the appraiser’s valuation, they hold another round. In the next round, though, the highest bidder buys it. Now, naturally, who turns to the Enforcement Office? Does someone who’s simply looking for an apartment go to the Enforcement Office? Usually, someone looking for an apartment opens Yad2 and searches there. Who goes to the Enforcement Office? Someone looking for what? A bargain. That is, people look there—unless it’s a particular property that lots of people are after. But generally they’re looking for bargains. A bargain is usually below the property’s value. As you can see, an appraiser himself sets a regular price and a distressed-sale price. A distressed-sale price is lower. Now let’s see how halachah views the price at which you’re supposed to sell an item belonging to—

21:25 Speaker 2 someone who owes money. Number four. “How do the appraisers value collateral, other movable property, or land belonging to a borrower for the lender?” How do they decide on the price? He says: “They appraise it at the price for which the lender could sell it immediately, even while sitting at home, according to the circumstances at that time. He should not have to go around towns and markets to sell it, or wait even until the market day in that town, when many buyers would be available and would outbid one another. Rather, they appraise it according to what someone who needs this item and wants to buy it would pay now.” Notice: someone who needs it, not someone looking for a bargain. “And at that value the lender receives it, because that is its value now.” They determine what someone would normally pay for an item like this, with the seller not having to go to any trouble. I sit at home, advertise the price, and people will come knocking on my door to look for the item. Now, if it’s—

22:31 Speaker 5 To look for the buyer.

22:31 Speaker 2 What?

22:32 Speaker 5 To look for the buyer.

22:33 Speaker 2 The seller doesn’t need to look for buyers. He sits at home, advertises the price, and they come. They hear the price and they come. That means, on the one hand, a price attractive enough to bring them in, but on the other hand, the highest such price. Not a rock-bottom price that’s guaranteed to bring people in. Someone who needs it will come; someone who doesn’t need it won’t buy it. There’s a price so low that you say to yourself, “I’ll buy it even though I don’t need it. I’ll buy it and resell it.” There’s a car that normally costs thirty thousand. I see it for ten thousand. I don’t need a car, but I’ll buy it and sell it for twenty. I’ll make a quick profit, so to speak. That’s not the price we mean. We mean a price at which someone who needs it will buy it, while someone who doesn’t need it won’t. Now he continues. As we see in practice at the Enforcement Office, is it someone who needs the item who buys it? Do they sell it at a—no, they sell it cheaply. Why is that? He says: “The reason there is no one before us now who wants to buy it at that price is that they see the borrower’s distress and know he has to sell it. They take advantage of his distress even more, making him sell cheaply. But its value is what someone who needs this item and wants to buy it would pay now.” He’s saying that, naturally, when it becomes known that someone owes money and is selling things, people will automatically wait at home. They won’t come to buy right away. They’ll say, “Ah, he owes money. Surely he’ll gradually lower the price.” So they’ll wait at home; they won’t come, and the price will gradually fall. I don’t go by that new, falling price. I go by the normal price an ordinary person would pay. So what price do you get at the Enforcement Office? A low price, reflecting the person’s distress. That isn’t the—

24:12 Speaker 2 real price. It isn’t right to sell that way. Now, what do we do? Nobody wants to buy it. What do we do? What did he write in the previous passage? “And at that value the lender receives it,” because that’s what they do now. They tell the lender, “You want the debt you’re owed? Take this. Take this, and deduct its value from the debt.” So say there’s a car. If you go looking for buyers and so on, it’s worth thirty thousand. But if you sit at home and advertise it, people will come and buy it for twenty-five thousand right away. You don’t have to wait. But people aren’t buying because they know it’s being sold through the Enforcement Office. If the price drops to twenty thousand or less, what do you do? Under the Enforcement Office’s procedure, they sell it at that low price. Perhaps they hold two rounds of bidding, but they sell it cheaply. According to halachah, no. According to halachah, you say to the lender, “How much is the debt? Fifty thousand? Okay, this car is worth twenty-five thousand. Take the car and do whatever you want with it. Sell it; work it out. Deduct twenty-five thousand from the debt, because that’s its value.” So, to sum up, the first stage of the Enforcement Office’s process is sometimes fine and sometimes not. It depends how it began: with a beis din, with a civil court, or with a bank. Sometimes it’s fine, sometimes not. The second stage—what they leave in his home and what they don’t—is fine under the law. The third stage, how they sell it, is often not fine. They sell it in a way that isn’t correct according to halachah. But seemingly, one reason is enough for me to prohibit buying it. If it isn’t proper according to halachah, then I’m effectively buying something the seller doesn’t want to sell. If according to halachah it’s

26:06 Speaker 2 That’s how they sell it, fine. But if halachah does not allow a sale that way, and he does not want to sell his car for twenty thousand, how can you buy it? That’s theft. Okay. What can we say, then? We hinted at this at the beginning, and now we’ll touch on it a little, as time allows. It’s actually a very broad principle in halachah. Take that person we mentioned who opened a bank account and signed dozens of documents. What do they say? That if he does not pay, if he has no money to pay, the matter goes to the enforcement office. They may not spell out exactly how the enforcement office operates, but everyone knows how it works. So you agreed to that whole process in advance. If it’s with a bank, yes. If it’s with a private person to whom you owe money and the case reaches the enforcement office, there was no stage at which you agreed to that. But with a bank, you did agree; you agreed to the whole process. In fact, this appears in the responsa Divrei Chaim. If you know about it. If you don’t, we’ll soon see what can be said. The Divrei Chaim says as follows, in number nine: “It is known to everyone even somewhat familiar with the regulations of this country that every matter has laws called paragraphs. If someone accepts an obligation under a paragraph”—the laws he is referring to—“he is bound to fulfill it by virtue of a condition, not by virtue of the law of the kingdom at all, since he explicitly accepted this obligation upon himself. It is also known that in matters of a guarantee”—there he is discussing someone who became a guarantor for another person, and the guarantee later obligated him to pay with his assets—“there are various laws. One of those laws is that if the debtor does not pay as obligated, all the guarantor’s assets will be sold and the debt paid first. And if

28:09 Speaker 2 there is an auction”—meaning a public sale, essentially like a tender. A tender, basically. “If they are offered at auction and no one bids the appraised value, they will be sold for whatever price can be obtained to pay the creditor.” That is exactly how the enforcement office works in Israel. They hold a tender and give it to the highest bidder, even if the bid is below its value. And you agreed to that, he says, the moment you entered into this and signed that guarantee. “The guarantor who signed to provide this guarantee certainly accepted the terms of the paragraph, and is therefore obligated by virtue of a condition to uphold them. Particularly since this law is known to everyone: things sold at auction”—that is, by tender—“may sell for far less than their value. The guarantor therefore accepted this and is obligated by virtue of a condition.” Basically, he is saying what we said earlier: when you signed with the bank, you signed on to the whole process. You knew what would happen there; you knew they would sell it cheaply; you agreed to it.

29:09 Speaker 6 But no one really goes into it thinking that way.

29:12 Speaker 2 Right. So halachah says that when you’ve signed, you can’t say you didn’t know. Take it home, as I showed earlier, and read it. You agreed. First of all, regarding the enforcement office: if the process began with an agreement, as he said here, you signed—

29:25 Speaker 6 With the bank.

29:26 Speaker 2 With a bank, for example. If it’s with a bank, you signed with the bank.

29:30 Speaker 6 A bank—that’s the case I’m discussing. I agree with that.

29:32 Speaker 2 Yes, yes. Now, with a car it’s much harder to know, but with an apartment, for example, it’s easier. Where I was in Rechovot, the building where we studied was taken by the enforcement office. With an apartment, all the neighbors around usually know what happened. The enforcement office comes and takes the apartment; people know what was behind it. There, for example, someone hadn’t paid municipal property tax for quite a few years, and in the end they took his apartment. So where was the agreement in that case? Did you ever sit down with the municipality and sign something setting out your relationship with them? Nothing like that happened. They came and took your apartment. That would be a problem in such a case. But on the other hand, suppose an apartment is being sold and people know the bank is taking it. That case would seemingly be easier. Now there’s a very, very important question here, and we’ll touch on it briefly. There is a concept called asmachta. What does asmachta mean? A person promises someone something, but does not intend for it to happen. For example, he says to someone, “Let’s do something together.” The other person says, “Wait, how do I know you’ll show up?” He replies, “Don’t worry. If I don’t show up, I’ll pay you ten thousand shekels.” In the end, he doesn’t show up. Does he really have to pay him ten thousand shekels? If we look at what happened, he was so sure he would get there that he offered ten thousand shekels.

31:06 Speaker 6 He didn’t really agree to it.

31:07 Speaker 2 He didn’t really agree to it. Yes, asmachta does not create a binding obligation. If the amount is reasonable—for instance, he tells someone, “I’ll take you to the wedding,” and the other person asks, “What if you forget me?” “Don’t worry. If I forget you, I’ll pay you such-and-such an amount.” In the end he forgets him, and now the other person has to pay for a taxi because of him. He relied on him and he promised, right? The taxi costs a certain amount, so that is reasonable. What he promised covers the loss he caused the other person—lost earnings or an expense. In halachah, that is called “not exaggerated.” There was nothing excessive about it, so the commitment is valid. But if he promised an excessive amount, it does not take effect. Now here, a person undertakes with the bank that if he does not pay his mortgage, for example, or another loan he took out, they will take his car and sell it the way the enforcement office sells things. For how much? Let’s say half its value. Is that considered reasonable or excessive? In principle, he accepted something excessive upon himself. In halachah, it is considered excessive. Halachah does not sell something for half its value. So I agreed to that? Everyone—show me someone who—[speaker 2 talks in the background] What? [speaker 2 talks in the background] Exactly. That is just what I wanted to get to. Someone buying a home or taking a bank loan does not take out a mortgage on the assumption that they will later take his apartment. He thinks he’ll keep up with the payments and they won’t take anything from him. But does he really agree that they should sell it? No one would agree to buy an apartment only to have it sold later for half or three-quarters of its value. He simply assumes it will not happen. He says, “It probably won’t happen.” That means

32:45 Speaker 2 there would seemingly be an issue of asmachta here. Now, the Divrei Chaim writes further on, in a line that does not appear here, that even though he agreed to an unspecified amount—he does not know for how much the property will be sold—and even though this is asmachta, “asmachta does not apply here at all.” That is what he writes, without explaining himself. One could suggest an explanation, but never mind. He does, however, bring up something relevant to the next stage, and we’ll finish with that. There is a concept called the prevailing practice of the country. With a bank, for example, everyone knows that once you sign, they will ultimately enforce the agreement. It is not like that person who promised the other, “I’ll give you...” He is sure it will never happen. And even if it does happen—not that he consciously thinks about it, but on some level he knows—it is not certain the promise will actually be enforced. His friend will not come and take the ten thousand shekels from him. In other words, he never seriously meant the whole thing from the outset. But with a bank, you know they will carry it out. That is an established practice, and perhaps the person therefore did accept it and agree to it. So, very briefly: there is a rule in halachah that one cannot sell something that has not yet come into existence. For example, I sell you the fruit that will grow on my trees next month, or I sell you the computer I will buy from my friend next month. The computer exists, but it has not yet come into my possession. One cannot sell something that has not yet come into existence or has not yet come into one’s possession. What happens if I make a transaction not through a form of acquisition established by the Torah, but through one established by merchants—the customary practice of merchants? For example, in the diamond trade it is customary to shake hands and say “mazel, mazel,” or—what is it?—“mazel and brachah,” and that is how they close a deal. And now

34:31 Speaker 2 The diamond is not in my possession yet, but the custom among merchants is that this counts as an acquisition. The question is whether it takes effect or not. So there is a dispute among the poskim about whether the prevailing custom is effective for something that does not yet exist. Now, an asmachta is very similar. With something that does not yet exist, what is the idea? You are not fully certain about it. It is not in your possession yet; you have not fully committed to it. Some of the poskim agreed that a person has not fully committed to it. The matter is uncertain to you, and an asmachta is the same: you have not fully committed to it. Seemingly, you could compare the two. Now, what is stated explicitly by the poskim is that the Chasam Sofer says the prevailing custom makes even an asmachta binding. That is what it says. Because of the prevailing custom, it takes effect even though it is an asmachta. According to this, what you undertook with the bank is binding. [Speaker 2 speaks in the background] Yes. [Speaker 2 speaks in the background] No, I’m talking about something you agreed to, something... This needs to be examined: the prevailing custom is, it’s— [Speaker 2 speaks in the background] Right, right, right. The question is: why is the prevailing custom binding? What does the Rambam say in many places? That you entered into the arrangement with the custom in mind. For example, you bought something with the custom in mind; you took the action with the custom in mind. The question here is: at what point did you agree to this custom? With the bank, it was when you signed. With the municipality, perhaps it was when you moved in; by moving here, within this municipality, you agreed to all the rules. I don’t know; it isn’t exactly clear. And what about state taxes? What would you say—that I was born here— [Speaker 2 speaks in the background] Yes, but when did I agree? I know about it in advance, and I don’t agree to it. What happens if you and I make a deal now and we say, explicitly, “We aren’t following the laws of the state at all, and we aren’t following the custom; we’re following what we agreed on”? What would the ruling be? It would follow what we agreed on. Why is the prevailing custom binding?

36:34 Speaker 2 Because when you said nothing, but took an action without saying anything, you presumably agreed to the custom. But if I didn’t take any specific action, where did I agree to the custom? So this needs to be examined, and each matter has to be considered on its own: what the custom applies to and what it doesn’t. If I do business with someone with the custom in mind—I did business with the bank with the custom in mind. That could also be a loan. Now, with a loan, for example— There’s also some kind of relationship between people. Right, right. The thing with—water, electricity— Right, right. ...and all those needs, food and so on. And where did my relationship with it begin? Where? When I came to live here. So perhaps you could say that simply by coming to live here in the city, the moment you moved into an apartment, you did so on that understanding. Perhaps you could say that. But take, for example, a loan between individuals: we lend someone something and he goes to the Enforcement and Collection Authority. Can we say it’s the custom between us—I’m not talking about people in Tel Aviv—that here in Kiryat Malachi people go to the Enforcement and Collection Authority over a private debt? No. I don’t think people here assume they’ll go to the Enforcement and Collection Authority. It isn’t as though, simply by making a loan, I took into account that they would take me to the Enforcement and Collection Authority, with all that entails. They also have no authority against the municipality. If it goes—if it goes for court approval, then it will have authority. Now, is that accepted or not? Wait, I think... Yes, it’s accepted. In short, that was the point: the prevailing custom would seemingly be binding. There were dayanim who wanted to say it wouldn’t; we won’t get into that. There is some discussion about it. Rabbi Elyashiv, when he sat on a rabbinical court, said it would be binding. There was another rabbi there, another dayan, who wrote that it would not be binding, based on the principle that if it does not take effect for something

38:13 Speaker 2 that does not yet exist, then it would not take effect here either. In short, there are discussions about it. What? Perhaps, but I saw a very nice explanation of why it does apply to all of us. Seemingly, that explanation makes sense.