Story LineNot Yet BuiltRabbi Meir Orlean
Mr. Brenner was renovating his house and also adding a small rental unit to provide income. He mentioned his plans to his neighbor, Mr. Mann.
“My son recently got engaged,” Mr. Mann said. “He’s looking for a small unit in the neighborhood, which is almost impossible to find in the middle of the year. Would you be willing to rent them your unit?”
“It will take two to three months to build,” said Mr. Brenner.
“That’s perfect,” Mr. Mann said. “B’ezras Hashem, they’re getting married in three months. I’m willing to sign a contract now; I’d like to know that it’s settled.”
The two drafted a rental contract, stating that when the rental unit was ready for occupancy, Mr. Mann’s son would rent it for the year at $500 a month.
A week before the wedding, Mr. Mann asked whether the unit was ready.
“It is,” Mr. Brenner answered. “However, it cost more to build than I expected. I’m going to have to charge $600 a month.”
“But we already signed a contract for $500,” said Mr. Mann.
“That contract was signed before the unit was built,” replied Mr. Brenner. “It’s not binding.”
“What’s the difference whether the unit was built or not?” asked Mr. Mann. “A contract is a contract!”
“How can it be binding before the unit existed?” said Mr. Brenner. “I set the price based on what I expected it would cost. As you see, things changed.”
“I can’t accept that,” said Mr. Mann. “If you are not willing to honor the contract, we need to take up the issue in beis din.”
“I’m willing to do that,” agreed Mr. Brenner. “We can adjudicate before Rabbi Dayan.”
The two came to Rabbi Dayan and presented the story. “Is the contract for $500 binding?” asked Mr. Mann.
“The contract is binding,” answered Rabbi Dayan, “although the case is not simple.”
“What is the issue?” asked Mr. Mann.
“Halachah limits the ability to sell something that is not yet existent, davar shelo ba la’olam,” replied Rabbi Dayan. “Shulchan Aruch further writes that whoever can sell, can rent; whoever cannot sell, cannot rent. Thus, seemingly, just as one cannot sell something non-existent, one cannot rent something non-existent” (C.M. 209:4; 315:2).
“Then why is the contract binding?” asked Mr. Brenner.
“First, the contract states that the rental should commence when the house is complete,” replied Rabbi Dayan. “Rema (C.M. 209:4) cites two opinions about one who sells something non-existent, but explicitly states that the sale should take effect when it becomes existent. However, Taz and Gra rule like the opinion that even so the sale is not binding” (see Pischei Choshen, Sechirus 4:6).
“Second, Nesivos (315:1) maintains that there is a difference between sale and rental regarding something non-existent, against the simple understanding of the Shulchan Aruch,” replied Rabbi Dayan. “He writes that rental always relates to future usage and entails a commitment incumbent on the owner to provide the rental item, unlike a sale, which focuses on the item.”
“For example, if a person rents out an unspecified animal (chamor stam) and it dies, he is responsible for a replacement, even if he did not have another animal at the time of rental,” continued Rabbi Dayan (C.M. 310:1). “Nesivos suggests that a person might even be able to rent out something specific (chamor zeh) when it comes into his possession. However, he writes elsewhere (192:6) that only when the initial item is existent does the commitment extend to something non-existent.”
“Third, and most important,” concluded Rabbi Dayan, “nowadays the common practice is to sell even items not yet existent through contracts; many authorities include this in kinyan situmta. For example, people often purchase houses from contractors before they are built. Similarly, the common practice would allow rental of not-yet-built dwelling units on this basis” (Chasam Sofer, C.M. 62:2; Pischei Teshuvah 201:2).
From the BHI HotlineCoercion and Compromise
I am a general contractor and was hired to do some renovations. I finished the project and the client owes me $10,000. When I asked for payment he offered to pay me $5,000 but threatened that if I don’t sign a release absolving him of any additional obligations, he won’t pay me anything and will deny any outstanding balance in beis din.
Q: May I sign the release, take the money and then pursue the remaining $5,000?
A: Before answering your inquiry, let us first review the laws of coerced sales and gifts. There is a difference between one who is coerced to sell something and someone who is coerced to give a gift. Although a buyer who forces a sale violates the prohibition of lo sachmod (C.M. 359:9, 10), the sale is valid. Since the seller received fair market value for the item, Chazal assume that he sold it willingly to free himself from the buyer’s threats.
In contradistinction, one who is forced to give a gift does not receive any compensation; therefore the gift is not valid and the recipient must return it. Hence, if there are witnesses, or the person admits that he was forced to sell the item, the sale is valid, but if witnesses testify that he was forced to give it as a gift, the gift is invalid.
Shulchan Aruch (C.M. 205:3) rules that pesharah — a compromise agreement between parties — is treated like a sale and is binding even though the “seller” was threatened to agree to the compromise. Because the recipient receives something of value for agreeing to the compromise (i.e., the other party also forgoes some of his claim), he agrees to settle. On the other hand, one who is forced to be mochel — forgo a claim entirely — receives nothing in consideration for forfeiting his claim and thus it is treated the same as a forced gift and is not binding.
However, not every forced pesharah will be valid and treated like a sale. Generally, the reason a pesharah is like a sale is that we assume that the “seller” is agreeing to the compromise out of concern that if he doesn’t, he may not be able to collect anything. Since he would rather collect something rather than risk collecting nothing, he agrees to the terms of the compromise. This applies only when there is some uncertainty regarding the case and he faces a risk that if he does not agree to the pesharah it may cost him more money. If the case is clear-cut and he agrees to a forced pesharah out of fear that if he doesn’t, the other party will lie and he may not collect anything, the pesharah is comparable to a gift and the compromise is not binding.
Therefore, 1) if witnesses testify that the compromise was forced, or 2) if the defendant admits that he forced a compromise, or 3) if a modaah (statement of duress) was issued, he may seek to collect the unpaid debt (Nesivos 205:9). [This will be explained next week, b’e”H.]
Your case depends on the client’s claim. If he has reasons why he feels that he does not owe the remaining balance, it could be that beis din would agree with his claims. Therefore, the pesharah is binding and you would not be entitled to collect the remaining amount. If he is merely strong-arming you to avoid paying what he owes, you would be able to seek collection of the remaining amount, since you did not receive anything in consideration of your agreement to forgo half of your claim.
Money mattersBeginning the Work#352
Q: Does beginning the work confirm the employment?
A: Once the employee begins working, the mutual commitments are binding (B.M. 76b; C.M. 333:1; Pischei Choshen, Sechirus 7:3).
Some consider this an actual kinyan (similar to chazakah of real estate), at least regarding a po’el, while others consider it a Rabbinic enactment that the parties should no longer retract (Shach 333:4; Machaneh Ephraim, Sechirus Po’alim 4-5; Sma 333:16; Aruch Hashulchan 333:8).
Beginning the work includes doing preparation for the work on behalf of the employer, such as purchasing necessary materials. However, checking what work is needed, giving an estimate, or even working for a test period is not considered as beginning the work until the employee takes responsibility for the job.
Going to the place of work is also considered beginning the work. Some maintain so only regarding a po’el, not a kablan (Avnei Nezer, C.M. 52:2, 4).
If a time period was set for consecutive work, beginning the work is binding for the entire period (Rema 333:2; Minchas Pitim, 315:1; Chazon Ish, B.K. 23:2).