Guide to Buying and Selling a Car According to Halacha – Marketing and Negotiating When Buying a Car

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

00:09 Speaker 2 Today’s class is on a very interesting topic. For those who didn’t attend the previous classes on these subjects, there will be a lot that’s new; for those who did, there will be a lot of review. So we have three topics in one class. We won’t go into every fine point and detail; we’ll discuss them in general terms. It will be a kind of review to help the material sink in. First, I’ll start with a true story. Recently someone came to me who had bought a used car and hadn’t paid much for it. He knew the car wasn’t a gem. He even had someone take a look at the car, or he filmed it. He had a video of the car and its engine. After he drove it, on literally the first or second trip, the engine failed. This is a true story. So he goes back to the seller, who says, “Listen, you bought a car.” These things happen a lot, of course. “You bought it knowing it was used. Its time has come. What do you want from me?” Now, the seller’s argument really has two parts. First: you could have checked it. You agreed to buy a pig in a poke without checking. As the seller of a used car, I don’t know—I can’t know what condition it’s in. Take it for an inspection. You didn’t check; you agreed to take it as is. So the question is whether that’s a valid argument. The second part is: let’s say he didn’t sell it—his not checking doesn’t mean he sold it. But what does that count as? Was there an expert involved or not? Maybe it only happened now?

02:10 Speaker 3 [unclear]

02:12 Speaker 2 Yes. What happens if someone bought, say, an animal, and it died afterward? There’s that discussion about someone who exchanges a cow for a donkey and it dies, and the question is when it died. They exchanged a cow for a donkey and don’t know when it died—whether it had already passed into the buyer’s possession or not. Wait, you’re saying that if it died, something must have started earlier. But that’s not what he says. I’m saying that I check when it died: while it was with one person or the other.

02:39 Speaker 3 Like a baby who has changed hands since birth.

02:41 Speaker 2 Right, right, right.

02:44 Speaker 3 That comes from here.

02:45 Speaker 2 Right. So let’s say that in halacha there are two similar rulings: in one we say one thing, and in the other we say something else. One is the case of the cow I mentioned—the cow and the donkey—where you look at where it died, in whose possession. I’m not concerned with anything else. “The burden of proof rests on the one seeking to take something from another” is generally one of the strongest principles in halacha, almost the strongest. Here, as it were, no other line of reasoning can make someone who holds the money give it up. He holds it—bring proof, not arguments. But here the reasoning is, “Where it was found, there it was.” In other words, wait, did it happen while it was with you? It happened while it was with you; I’m not looking further back. And the reasoning of “where it was found, there it was” is even stronger than the principle that the burden of proof rests on the claimant. In other words, we have a doubt here; we don’t know where it happened. Say the buyer still hasn’t paid. He still hasn’t paid, and the money is still with him, but the defect was found only after the item had passed into his ownership. I say, “Where it was found, there it was.” It happened while it was with you, and that settles it. That’s one case, okay? We’ll look at it in a moment. I actually didn’t intend to focus on this, but since it was asked, I’ll say a little about it. The second case involves cheeses. Someone sold another person cheeses, and afterward the buyer opened them and saw that they were moldy. There, they ruled that the burden of proof rests on the claimant. They ruled that it’s uncertain whether... They put it this way: if an expert says that this degree of drying means they were already spoiled at the time of purchase, then the sale is certainly void. And if the expert says it looks recent, then the sale certainly isn’t void. But if it isn’t clear—you can see how dry it is, but you can’t tell whether it began before

04:33 Speaker 2 that or not—the burden of proof rests on the claimant. Here the question is: wait, shouldn’t we say, “Where it was found, there it was”? You opened it in your possession and saw it was moldy in your possession, so it happened while it was with you. So here the halachic authorities say—what?

04:50 Speaker 4 The same conclusion, but not...

04:52 Speaker 2 No, it’s not the same conclusion. If, for example, the buyer hasn’t paid.

04:55 Speaker 4 Then it’s with the... [unclear].

04:58 Speaker 2 Right.

04:58 Speaker 4 The burden of proof rests on the one seeking to take something from another...

04:59 Speaker 2 So it depends on whether he paid or not.

05:01 Speaker 4 Oh, if he’s already paid.

05:03 Speaker 2 Yes. Usually, if he bought it, he’s already paid, but not always. Sometimes he buys on credit.

05:07 Speaker 4 People pay, but there are things you don’t know.

05:10 Speaker 2 Right, right.

05:11 Speaker 4 But, but today almost every product has a day or thirty days. Every...

05:15 Speaker 2 Some sort of warranty.

05:18 Speaker 4 Yes, everything that...

05:18 Speaker 2 So that’s the question. Now the question is about the warranty...

05:21 Speaker 4 Even pants—on eBay they said [unclear]—so, so, so give me what I asked for.

05:32 Speaker 2 Okay, so that’s it. This is where the warranty comes in; that’s the next stage. The first stage is to establish in whose possession the defect arose. That’s the first stage. In halacha, there’s no concept of a warranty. In halacha, the question is whether what I bought was in good condition or not. But then you say that today, when someone buys a product, he expects to use it for a certain period.

05:52 Speaker 4 That’s the local custom.

05:52 Speaker 2 Exactly—the local custom. So if it’s the kind of sale where local custom would impose an obligation... Say, with a used car, there’s no custom... There’s no law, and no local custom either, about how long a used car is supposed to last after you buy it. There’s no... It isn’t a one-year warranty; usually there’s no warranty on a used car.

06:10 Speaker 4 There is a custom that within, within, within... Even with a used car, you’re required to present, uh, a document...

06:18 Speaker 2 You certainly have to disclose all the defects.

06:21 Speaker 4 Okay, there’s a name for it. No...

06:23 Speaker 2 Okay.

06:24 Speaker 4 An actual custom.

06:25 Speaker 2 I mean the service record, showing all the car’s repairs and everything.

06:29 Speaker 4 Yes, you have to present it.

06:30 Speaker 2 Okay.

06:30 Speaker 4 Now, you could say there’s a distinction between something that could have happened just now and an animal that died. It died now; it didn’t die yesterday. It isn’t an ongoing process.

06:38 Speaker 2 Good, good, good. That’s exactly the...

06:42 Speaker 4 But deterioration is something that builds up over time. You can’t say it happened just now, while it was with you. It takes minutes before everything...

06:49 Speaker 2 Exactly, exactly. That’s the distinction they make. One of the... I don’t remember which contemporary halachic authority brings these two cases. He says there’s deterioration that develops over time, and there’s damage that can happen all at once. And here, really, we leave it to the experts. For example, something can happen to an engine all at once, too. Say you drove over a stone on the road, and it flew up and damaged the engine. In the story I told you, for instance, what did they find? They found there was no water. Now, how did the water disappear? The seller tells him, “Something might have happened while it was with you. Maybe the radiator burst, or something hit it and punctured it. There was no water, and the engine went.” And then the buyer says, “There were already strange noises in the video you filmed; there was already a problem then.” I won’t get into that. As I said, that’s the second part: determining in whose possession the damage most likely occurred. For that, we have the rules we mentioned earlier, according to the distinction he made. If it’s something that develops over time, then in a case of doubt, the burden of proof rests on the claimant. So the first thing is to consult an expert. If it’s clear to the expert in whose possession the damage occurred, then it’s clear. If it isn’t clear to him, the burden of proof rests on the claimant. But if it’s the kind of damage that could happen all at once, then we say, “Where it was found, there it was.” We found it while it was with you; it happened while it was with you. I’m not looking further back. That’s the rule here. But let’s return for a moment to the first part of our question. Maybe the seller can say to him, “You didn’t check it, which means you waived your claim; you accepted it. A normal person checks a car before buying it.” That’s his argument. This is the first part of the class. We’ll discuss whether someone’s failure to check means he waived his claim or not. The

08:42 Speaker 2 second and third parts will concern a buyer—when there’s another potential buyer who comes to buy—and giving preference to one buyer over another. We’ll cover that if time allows. So let’s start with the first part. Look at number one: “One who sells another person land, a servant, an animal, or other movable property, and a defect is found in the purchase that the buyer did not know about, may have it returned even after several years, because it was a mistaken purchase—provided that he did not use the item after discovering the defect.” In other words, there’s no time limit for returning it. It could even be after several years. If you discover a defect that was definitely there from the beginning, you can return it. Now... Where is the Maggid Mishneh?

09:40 Speaker 5 What does a defect in land mean? Give an example. I want to point out that a defect in an animal is easy to understand, but in land...

09:50 Speaker 2 Nowadays it could be legal issues, for example.

09:54 Speaker 5 Oh, that’s included too.

09:54 Speaker 2 Yes, yes. The definition is that anything people in that country consider a defect for which a sale can be reversed is considered a defect. Incidentally, that’s a good example, and I didn’t mention it. It’s a very good example, specifically with a car.

10:12 Speaker 5 Who would know if it wasn’t there?

10:14 Speaker 2 Oh, right.

10:14 Speaker 5 Who would know if it’s just—

10:14 Speaker 2 Right, right. That’s a claim the seller makes quite often. He says, “What could I do? I didn’t know.”

10:18 Speaker 5 That’s no excuse.

10:19 Speaker 2 No, it doesn’t matter. Now, what you mentioned applies here to a car as well. There’s such a thing as checking whether a car has a lien on it. The buyer bought the car and didn’t want to pay for a lien check, and afterward it turned out that the car really was under lien. The seller might say, “Listen, you didn’t check. You could have checked, but you didn’t. That shows you didn’t mind. You agreed to take it even if it had a lien; you don’t care.” After all, it’s not as if they’re taking your car away. It has a lien—don’t worry. I’m keeping up with my loan payments. They won’t take your car; don’t worry. But the buyer says, “No, I don’t want something that has a lien on it.” So would people generally—

10:59 Speaker 5 Assume it has a lien on it.

11:00 Speaker 2 That’s also what you’re saying—

11:01 Speaker 5 It’s suspicious.

11:01 Speaker 2 What you’re saying is relevant here too. We’ll mention that reasoning as well, but in general, perhaps he could say to him—

11:08 Speaker 5 You need to check that.

11:09 Speaker 2 You could have checked.

11:09 Speaker 5 People check that.

11:10 Speaker 2 That’s—and in the normal course of things, you’re supposed to check it. In other words, that’s the usual procedure. You buy a car—

11:16 Speaker 5 A lot of times people don’t know, but that means—

11:19 Speaker 2 I suggest you check for a lien.

11:21 Speaker 5 Yes, yes. If that’s the accepted practice, then fine.

11:24 Speaker 2 Right. The question is whether it’s the accepted practice, and how much weight that carries. So first, let’s start with this: Can the seller rely on the fact that the other person isn’t checking, and say, “I won’t tell him anything; it’s his problem if he doesn’t check”? Certainly not. We already saw this. In previous classes, we learned about someone selling wine who mixes—or wants to mix—water into it. He’s not allowed to mix in water, unless everyone tastes it. If everyone tastes it, it’s permitted. Why? Because it will become clear to the buyer—

12:00 Speaker 5 They taste it before buying.

12:01 Speaker 2 They taste it before buying. They taste it before buying. But the understanding there is that everyone does. If you see that someone has decided not to taste it, you have to tell him, “Listen, there’s this problem and that problem.” The whole point is that you’re sure he’ll find out. What’s an example of that? Various visible defects that a person will notice when he walks around and looks. There’s something on the car. I don’t have to sit there and list everything for him: “Listen, there’s a dent there, and this there, and that there.” He’ll walk around and see it for himself. There’s no need to give him such a bad impression of the car. But if you realize that the person isn’t going to inspect the car, you have to tell him the details.

12:36 Speaker 6 A hidden defect.

12:36 Speaker 2 Yes, you have to disclose any hidden defect. Now, what happens if he didn’t disclose it and the buyer didn’t check, and afterward the buyer comes and says, “Listen, I found this problem; I found that problem”? Here, you can also understand the distinction on your own. Say he discovers that the window sticks and is hard to close. It’s a hand-cranked window, and it takes—I don’t know—a lot of effort. The mechanism needs replacing. Or the speakers’ volume won’t go very high, or the air conditioner doesn’t cool enough. There can be many things wrong with a car. Or, as we saw earlier, the engine fails because there’s a serious problem with the vehicle. The question is: Do we say he waived his claim, or don’t we? Now, pay attention. In the Rema we saw earlier—the Shulchan Aruch is essentially following the Rambam—he said that even if you discover a defect after several years, you can return the item. Now, during those years, could you have inspected the product? You could have. You didn’t, but you’re not obligated to inspect it. That’s straightforward. On the other hand, look at source number three: “And there is one who wrote that if the item was something the buyer could inspect immediately—for example, if it could be tested or tasted—and he did not take care to do so, and the seller sold it to him without specifying anything, he cannot return it.” The Maggid Mishneh says this: If it was possible to inspect it and he chose not to, even though he physically could, he cannot return it. Now, any sefer you open on the subject of checking a purchase for defects will discuss this: the Maggid Mishneh versus the other poskim. The question is how much room there is for his opinion. The Maggid Mishneh is saying something very significant: Anyone who doesn’t check is considered to have waived his claim. Now I’ll start with the Tzemach Tzedek. After that, we’ll go through various ways of explaining the Maggid Mishneh’s position. The Tzemach Tzedek says that the Maggid Mishneh is not accepted as halachah. Look at number five.

14:46 Speaker 2 He says, “Even regarding a defect that voids the sale, even if he delayed returning it after learning of the defect,” as the Rif, the Rambam, the Maggid Mishneh, and others wrote. Then he says, “And not like the Sma,” at the end of the fourth line. “And not like the Sma in the siman, concerning the end of the Maggid Mishneh’s statement, where he wrote, ‘And there is one who wrote,’” and so on. Now, I won’t go into all the details. This is what he’s saying: The Maggid Mishneh says that if someone could have checked and didn’t, that means he waived his claim. But why did the Rif, the Rambam, and the Shulchan Aruch say that even after several years you can return the item? During those years he could have checked, but he didn’t. That’s his question. So the Tzemach Tzedek says that the Maggid Mishneh’s view is not accepted as halachah.

15:32 Speaker 6 The Maggid—

15:32 Speaker 2 The Maggid Mishneh is not accepted as halachah. According to that, if it’s not accepted as halachah—

15:34 Speaker 6 Not number three.

15:36 Speaker 2 Yes, yes, yes. In other words, so I could have checked. So what? In the end, I didn’t check.

15:42 Speaker 6 Even after several years.

15:44 Speaker 2 Yes, just as you can return it after several years. So far, so good. But many poskim came along and said that the Maggid Mishneh doesn’t—there’s a big difference between after you’ve bought it and before you’ve bought it. After you’ve bought it, you’ve already paid and it’s already yours. Now it’s sitting with you. You have no reason to go and inspect it. Why would you inspect it now? You bought something for Pesach. Six months earlier there was a sale on a cheap kettle. You needed a kettle for Pesach, so you bought it and put it aside. Why would you inspect it now? You’ve already bought it. Pesach arrives, you check it, and suddenly you see a fault that clearly existed beforehand. Why shouldn’t you return it? You bought a defective product; return it. But if you can inspect it at the time of purchase, that’s a very simple thing. An example is someone buying an apartment. Some people go around checking all the cabinet handles and all the switches to make sure everything works, and so on. Now, you can check; if you want to, check. Here it may be that someone who doesn’t check is thinking, “Fine, at worst one of the switches won’t work.” Let’s say none of the switches work, or someone buys the place and—I don’t know—all the doors are faulty. That would be a major defect, and we’ll discuss it shortly. But let’s say they’re not major defects; they’re small defects. Can you say, “Listen, there are defects here. Fix this for me, fix that for me”? Or do I say, “You could have checked, and you didn’t”? So many poskim explain the Maggid Mishneh as referring to before you bought it. There’s a big difference. Before buying, you should make a basic inspection. If you didn’t, then you waived your claim regarding those small things. But afterward,

17:33 Speaker 2 Once you’ve already bought it, fine, it can sit there for several years. When you find the defect, you can return it. That’s how many explain his view.

17:41 Speaker 7 What does that mean? It’s a distinction between a defect you can check for before buying and a defect you have the opportunity to check for.

17:48 Speaker 2 Yes, that’s how it works out. You couldn’t check it. For example, you bought the product just before the store closed. There was no time to check. It was like a case with a car. You came to buy a car, and the seller says, “Listen, [unclear], I’m selling it. Do you want it now?” Maybe deliberately, maybe not—it doesn’t matter. He put the buyer under pressure; they were in a hurry. One of the halachic authorities gives this example: they hurried and didn’t check, so the buyer can return it afterward too. He really had no opportunity to check. Now we’ll see that several halachic authorities accept the Maggid Mishneh’s ruling, but qualify it—they give it many exceptions. The question is whether the other side can be sure you’d hold him responsible for it. He was only speaking about after the sale, not before it. He might have agreed to that too. So we’ll look at a few exceptions and then come back to the general rule. I don’t know if we’ll read it inside; we’ll speak generally. Here in number two, two lines from the bottom—we’ll read just two lines. He says that people don’t normally show the item to an expert; they rely on their own judgment. That’s the first example. I don’t have to bring in an expert specifically to check it. I check it myself; my own cursory inspection is enough. A second example is here in number six. In the third line he says: “It seems clear to me that this applies specifically to something in which a defect is common, such as wine, which commonly turns to vinegar, or something similar in which a defect is common. In that case, he should have considered the possibility and checked it. But with something in which defects and mistakes are uncommon, he had no reason at all to consider the possibility of a defect and check for it.” That’s what you said earlier. You asked why he would think that it—

19:34 Speaker 2 That it would happen? So you aren’t expected to check for things that there’s no reason to think will happen. You check for things that ordinarily happen. If someone cares a lot about the volume of the radio in a car, he should get in, turn it on, and check. Or if he cares how strongly the air conditioner cools, he should check that. Another point, in number eight: in the third line he says, “When he can do it immediately, without any effort,” but afterward he writes, “If it takes effort or time to find out and identify it,” and so on. Even the person who wrote this agreed to that. In other words, I can’t really be expected to go to a lot of trouble, bending down and searching underneath and from every angle. We’re talking about simple things. And another point, the most important one—the quotation isn’t included here—is that it has to be a defect one might overlook, not a defect that fundamentally affects the purchase. Take our case, for example. It turned out the engine was shot. The experts come, watch this video, listen to the noises, and say, “You can hear that this engine is finished.” Can I say to the buyer, “Listen, you didn’t check it, so you waived your claim”? You can’t say that. Even if it had been easy to check, a person doesn’t buy something for it not to work, and he certainly hasn’t waived his claim. Waiving a claim applies to things you could reasonably say he overlooked. So only when all these conditions come together is there a possibility of saying he waived his claim. It also has to be something he could check easily, without needing an expert.

21:19 Speaker 8 An engine is...

21:20 Speaker 2 What?

21:20 Speaker 8 An engine isn’t something you can check.

21:22 Speaker 2 That’s what I’m saying. With an engine, there’s no chance of saying that at all. But if it’s—

21:25 Speaker 8 If the engine won’t start, that’s a problem.

21:26 Speaker 2 That could be something minor. Yes.

21:29 Speaker 8 So that’s not a person.

21:30 Speaker 2 What? No, but—

21:32 Speaker 8 That’s not a person.

21:33 Speaker 2 Yes, but if he didn’t check it, he could easily have checked. I think that—

21:38 Speaker 8 There are three basic things you need in that kind of car inspection: the engine, the chassis, and the transmission. Those are the—

21:45 Speaker 2 Yes, those are the things that really, uh...

21:48 Speaker 8 Now let’s go forward step by step, as we did before. That’s completely different from someone who got stuck with... There are many hidden things we can’t get a picture of. I mean, these are things beneath the surface.

21:57 Speaker 2 Yes.

21:59 Speaker 8 But we learned the information [unclear], and I also looked there at... They also did something with the picture. [unclear] Not everyone knows that.

22:06 Speaker 2 Right.

22:07 Speaker 8 There are a million things.

22:09 Speaker 2 Who? I don’t know how to describe it. What?

22:11 Speaker 8 In other words, it’s required.

22:13 Speaker 2 Ah.

22:14 Speaker 8 No, those inspections are required. You can cancel the purchase. Today, the accepted practice in the market is that you need to check. That’s the practice. But if you’re someone who wants to [unclear], or the seller, or I don’t know, or whatever...

22:27 Speaker 2 The question is, if he doesn’t check and afterward they discover that it was in an accident and the seller didn’t tell him, can he still cancel?

22:34 Speaker 8 No. On the one hand, I think that’s a different matter. It’s as though you ignored the possibility. He gave up the opportunity in every sense of the—

22:41 Speaker 2 Exactly. So here, if he waived his claim over minor things, he really did waive it. But with major things, I don’t think a person waives his claim over that kind of thing. Let’s put it that way.

22:50 Speaker 8 It’s like a strong formulation I once heard, defining it in terms of whether it amounts to a different purchase.

22:59 Speaker 2 Right.

22:59 Speaker 8 If they didn’t tell you something about this particular case... If it’s a minor defect that a person might overlook, fine. But if it’s something major and decisive, and had he known about it, unequivocally...

23:15 Speaker 2 Yes. By the way, that was exactly the case... There’s an interesting example in halachah regarding defects. There are details that become known specifically with a woman—many details become known specifically with a woman. Also... What? Yes, yes. Someone who enters into an arrangement on the understanding that... Even if he didn’t say anything, if various supposed defects are later found, it can be annulled. Okay, that’s the first part. Now for the second part. We moved further along in the process. He showed him the item, and the buyer was already starting to think about it seriously. He said, “I’ll think about it; I need to check it; I...” Moshe told him, “As far as I’m concerned, it’s settled. I’m going to get the money.” There are various stages. Someone also asked me recently—not about a car, but about another product. Someone had spoken to him but hadn’t offered him a price. Later he came back and offered a lower price. He told him, “I’m thinking about it.” So he felt some obligation to him, but then someone else approached and offered a higher price. How obligated are you to the first person? There are two questions here: how obligated the seller is, and how far someone else, coming in from the side and seeing a deal in progress, can interfere with it. And by the way, this happened to me—I’ve told this story before. I came to buy a car. The seller hadn’t said anything to me. We went through everything and were about to close the deal. I was actually about to pay, and he said, “There was another religious fellow here this morning. He said he wanted it and went to get the money.” Suddenly I thought, “What—has he already made a deal with him? The man just went to get the money.” I wrestled with that a lot. In any

24:55 Speaker 2 case, let’s briefly see what the halachah says. Number nine: “If someone is pursuing a purchase, whether land or movable property, and another comes and buys it first, the latter is called wicked, for he can find somewhere else to buy or sell through effort and persistence. This is unless he is buying at an exceptionally low price that cannot be found elsewhere; then it has the status of a find.” Nowadays, calling something “a find” or “a bargain price” is just slang. But here, in halachah, it has the status of a find, provided the first person has not yet acquired it through the form of acquisition that completes the purchase. The Alter Rebbe says this: someone wanted to buy something and was pursuing the purchase, and then a second person came along. The second person should let the first buy it. Why interfere? Go somewhere else and buy. But if it’s a find, something you can’t get elsewhere—like the exceptionally low price he mentions—that’s like finding something. In that situation, strictly speaking, it’s permitted. A particularly conscientious person would refrain from it, but strictly speaking, it’s permitted. Now, in the continuation there, he says this: If I were to make a rule that whenever someone wants to buy something, everyone else has to step aside, sellers would lose out. Every time a buyer came along, the seller would be stuck with that one buyer and there would be no market. There would be no competition among buyers, so the seller would get a low price. We want there to be competition. Therefore, the Sages did not institute such a rule; they left the market open until the price is set, until they agree on a price. Once they’ve agreed on a price and move to the next stage—the buyer goes to arrange the money, or whatever other procedure is needed—no one else can step in. Even if someone wants to offer a higher price, they’ve already settled it. The seller has already agreed, and it can no longer be said that I’m causing him a loss if I close

26:54 Speaker 2 the market. So according to the basic law, the market is open until the price is settled. Once the price is settled, you don’t step in. And we mentioned in previous classes that the Prishah wrote—and you quote him—that the custom was to be stringent even before that. Then you ask: Wait, what does it mean that they were stringent? Again, you’re causing the seller to lose out. We said you don’t make the seller lose out. So he explains there that there are two possibilities for what “before the deal is closed” means. One possibility is that you can see they’re about to close the deal. They’re already talking; you can sense a positive atmosphere. Fine, they haven’t actually closed, but they’re heading there, so don’t interfere. But if they’re in tough negotiations—one says one thing and the other says no, and then he backs off, leaves it, or something like that—in that situation, you can come and get involved in the deal too. So that’s the general rule. If someone has already bought it and settled the price, you may not come and get ahead of him. Now, incidentally, my case wouldn’t have been considered a closed deal, because when I spoke a little with the seller, you could see that he—he said he would come, meaning it wasn’t, it wasn’t... When he wanted to close with me, he said, “Let’s put it in writing. Let’s write it down, let’s sign.” That was what counted as closed for him. In a situation where the deal isn’t closed, you can get involved. What’s the rule behind that? That’s it. It could be that the Prishah’s rule did apply here; I need to think about that. With the Prishah, it’s when you arrive and see two people negotiating with each other, but the process is going well. They’re making progress. They’re moving toward closing the deal. So can you come in midway, push your offer, and cause the deal to go to you? What? What, what, what? Where? In nine? Nine is the Alter Rebbe. The Alter Rebbe

28:59 Speaker 2 rules plainly according to the basic law, not like the Prishah: before the price is settled. Here we’re talking about after the price is settled. The continuation isn’t shown here. The Alter Rebbe said—actually, it also says, “after the price is agreed upon.” Once the price is agreed upon, it’s forbidden. Before the price is agreed upon, it’s permitted. Unless he’s getting it at a very low price. Ah, buying at a very low price is permitted even afterward. Even after the price has been agreed upon, because this is a rare find. Because what’s the idea here? You see someone buying something—why interfere with him? Look somewhere else. Why go for this one? But if it’s a rare find, something you can’t get elsewhere, then according to the basic law it’s permitted. With a car, for example, if it’s a car that... If it’s something widely available on the market, I tell you to go elsewhere. But if it’s a car that isn’t widely available—which was also the case in my story—it was a small car with two seats in the back, in the trunk area. There weren’t many cars like that, and they were in demand. So with a car like that, which is like a rare find, I say: Why should you have priority over me? You haven’t bought it yet. You’ve only closed the deal. That’s it, you’ve closed it. Now I want it. Even after the price has been agreed upon? Even after the price has been agreed upon. If it’s like a rare find, then even afterward it’s permitted for the buyer. The seller has a problem of mechusar amanah, failing to keep his word. After he has closed a deal with someone, he’s failing to keep his word, but that shouldn’t prevent the buyer from approaching him. What is this concept of “a poor person turning over a cake”? This is it. This is “a poor person turning over a cake.” There’s a dispute about whether that rule applies to a rare find or to a purchase. The Alter Rebbe rules that according to the basic law, it applies to

30:40 Speaker 2 a purchase, and therefore he permits it in the case of a rare find. A conscientious person should be stringent—that’s what he writes. Are you defining all of this as theft? No, it isn’t theft. It’s something you shouldn’t do in the first place, and that’s why someone who does it is called wicked. After the fact, you’ve already bought it; that’s it, it’s yours. He’s called wicked, but it isn’t called theft? It isn’t called theft. Wicked, yes. Yes, according to the vast majority of halachic authorities. There are other opinions. There’s a story in the Gemara. There’s a story in the Gemara about a piece of land, and the source for this rule regarding a purchase is actually that land. Someone was trying to buy it, and another person, who didn’t know about it, bought it. Then the first person complained to... Both of them were Amoraim. He complained to someone else, who then said to him, “Do you want it? Take it.” He said, “Sell it to me.” “No, I won’t sell it to you,” because there’s a saying that selling your first piece of land isn’t a good sign. So he didn’t want to sell it; he only wanted to give it to him as a gift. And the other person didn’t want to take it, because “one who hates gifts will live.” So it stayed that way. The students used it and called it Ar’a d’Rabbanan. That’s the story, yes. So that’s the source, and they discuss there whether he was obligated to give it back or not. Most halachic authorities say he wasn’t obligated to give it back. Wanting to give it back was an act of piety, but as a matter of law, you’ve already bought it; it’s yours. Now, another step. What happens when several people approach the seller? Is he supposed to give one of them priority, or not? So here, in section ten, the Alter Rebbe addresses it. What’s interesting is that he discusses it in the case of someone who wants to sell land or a house. He doesn’t write that it applies to movable property as well. Now, perhaps we could say

32:21 Speaker 2 that he was just giving an example. What’s interesting here is that the Rambam writes, “One who wants to sell land.” He doesn’t add—and the Alter Rebbe adds, “or a house.” That’s interesting. If he’s already adding “or a house,” why not say “or movable property”? He doesn’t. And as much as I searched—and I really searched a lot—who addresses whether priority applies to movable property? I didn’t find anyone among the earlier authorities who really does. Among contemporary scholars, one says, “It stands to reason that the same applies to movable property.” Another says, “No, it’s only land, not movable property.” It’s very interesting. In practice, though, let’s see what the order of priority is. First is a Torah scholar. He’s the one who should be given the greatest priority out of respect for Torah study. After that comes a friend, and then a relative. A friend before a family member, as it says, “Better a close neighbor than a distant brother”—where “neighbor” here means a friend, someone with whom he has a lot of dealings. He should give the friend priority over the relative, and the relative over a neighbor who is—over a fellow townsman, someone who isn’t—he’s just from the same town, not his friend. So that’s the order. And if one person is from the town and the other isn’t, he gives priority to the person from the town. So according to this, if you have several—I remember seeing this right before my eyes on the eve of Sukkos. There was a shortage of aravos here this year, and I saw exactly this scenario in front of me. The seller had one bundle left, just one, and several people were standing there. He didn’t know what to do, whom to sell it to. Wait, who was first? And so on. Now, it would seem that we don’t consider who came first here, because this isn’t a line where people are waiting their turn. It isn’t about who grabs it, but about this order: Torah scholar, friend, relative, fellow townsman. If it applies to movable property, that is. The Alter Rebbe doesn’t

34:16 Speaker 2 mention movable property. If we say it does apply to movable property, they would follow this order. Let’s read the last line. “And all these priorities are an enactment of the Sages, to fulfill what is written: ‘You shall do what is upright and good in the eyes of Hashem your G-d.’” Giving priority to someone closer to you is part of doing what is upright and good. The closer person comes first. One last thing: in section eleven he writes about what happens if two people come. Can the seller decide, “I’ll sell to you, but not to you”? “I don’t feel like selling to you; I want to sell to him.” They both came, let’s say, at the same time. Neither has any priority over the other; they’re both on the same level. Neither has priority under the order we discussed earlier. Is this discrimination in selling, or something like that? What?

35:02 Speaker 9 That’s government policy.

35:03 Speaker 2 Right. The laws of the country—I don’t know if we can invoke dina d’malchusa dina, “the law of the land is law,” in this matter, because it isn’t a monetary law. So—what? Yes, but the government does that, so to speak, under anti-discrimination law, not because of the... Yes, that’s what I’m saying. Okay, let’s see what he says. At first he’s uncertain. Then he says, “In the end, it’s clear to me; it’s obvious to me”—I only brought the conclusion; he discusses it at length. Ultimately, it’s obvious to him that the seller can decide. Why? He has the right to say, “I’m not selling at all,” because it’s his property. He can say, “I don’t want to sell to anyone. So now I’ve decided not to sell at all. I’m done saying that I’m not selling at all. Now I’m selling to him.” Therefore, he can decide whom to sell to. That’s how the Alter Rebbe rules. Then his next question is whether, if that person forced him to sell it to—to sell it to him, that constitutes a problem or not.