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In the case of buying Metaltelin, moveable items, a cash payment is not sufficient to effect a transfer of ownership, and either side can retract from the sale until a formal act of kinyan has taken place. However, Chazal discouraged people from retracting on a commitment that has reached the stage of a transfer of money, and they instituted that if one does indeed retract from this sale without the consent of the other party, one must accept a "Me Shepara" from the Beis Din. This means that the Beis Din makes a declaration to the effect that "the One who punished the generation of the Flood and the people of Sodom etc. will also mete out punishment to one who does not stand by his word."
The following article is excerpted from Rabbi Ari Marburger's book, "Business Halachah," and discusses briefly the application of Me Shepara to sales of moveable objects, and whether retracting from a sale of real estate entails a Me Shepara.
According to halachah, a formal act, or kinyan, is necessary to consummate a sale. Simply agreeing to sell an item does not transfer ownership to the buyer. Payment is a valid kinyan for real estate and can immediately transfer the ownership of real property. (1) The buyer need not pay for the entire purchase. Even a token payment can create a kinyan. (2) However, all kinyanim need daas; the parties must intend to transfer ownership. Nowadays, the parties typically do not want the transfer to take place until the deed and all of the appropriate documents are executed. As such, payment itself will not create a kinyan. (3) However, according to many poskim, me shepara will apply if a payment is made. (4)I
Me shepara will apply even if there was only a partial payment to the owner. (5) However, if the buyer does not actually pay the seller, but rather gives him an item as collateral (mashkon), to secure the deal, he would not be subject to me shepara. (6) The halachic status of a security deposit or money given as collateral is questionable. (7)
As explained earlier a formal act, or kinyan, is necessary to finalize a sale. (8) Until a kinyan is made, the item still belongs to the seller. If it is damaged or destroyed, the seller suffers the loss. After thekinyan, the item belongs to the buyer and the transaction is final. Neither party can reverse the transfer.
The most prevalent (9) kinyan for movable objects (mitaltelin,) is taking physical control of the merchandise.(10) Neither payment (see section "Payment") nor a contract (11) are valid kinyanim formitaltelin. The classic kinyanim for karka (real property), are paying for the property, (12) chazakah, (13) or kinyan shtar (contract). (14)
Minhag hasochrim plays an important role in monetary transactions. If there is a prevaling custom to recognize a particular act as consummating a transaction, the act will be treated as a kinyan even though it does not conform to any of the classic forms of kinyanim. (15)Sources
1. Choshen Mishpat 190:1.
2. Ibid.
3. Ibid. 190:7.
4. Tosafos, Kesubos 93a; Pischei Teshuvah 204:2; Igros Moshe, Choshen Mishpat 1:44; Chazon Ish, Choshen Mishpat, Likkutim 15:11.
See also Beis Yosef 204; Shitah Mekubetzes (Ritva), Bava Metzia 14a; and Mishpat Shalom 190:7 who quote sources that me shepara does not apply to real estate. In a case where it is unclear in halachah whether ame shepara is appropriate, Erech Shai 204:2 (based on Bach 204 (9)) writes that if a party chooses to back out, a me shepara warning is not administered. Mishpat Shalom 204:2 argues that since there is a doubt, the seller may refuse to refund the money until the buyer accepts a me shepara. However, because there is a doubt, beis din does not refer specifically to the buyer when making the me shepara. Beis din makes a general statement that Hashem will punish those who do not honor their commitments.
5. Chazon Ish, Likkutim 15:11 writes that if the sales contract specifies a penalty for breach of contract, there may be no me shepara. The clause may be interpreted as an agreement to impose a financial penalty for breach of the agreement, and is an implicit waiver of any other remedies. See also Choshen Mishpat 12:9, Even HaEzer 50:6.
6. Choshen Mishpat 204:5.
See, however, Ketzos 204:1 who quotes Ramban and Rashba who disagree.
7. Bach 204 (5); Darkei Moshe, HaAruch 204 (5); Beur HaGra 204:5 (10);Mishpat Shalom 204:5; Nimukei Yosef, Bava Metzia 29a (Dafei HaRif); based on Yerushalmi, Sheviis 10:4, write that although collateral does not create a me shepera, if money is given as a deposit, me shepara will apply. Accordingly, if a deposit is released to the seller, me shepera will apply. However, a security deposit held in escrow by a third party is perhaps less than a mashkon and may not be subject to me shepara.וצ"ע לדינא
8. Choshen Mishpat 204:1.
9. Taking physical possession of the item is the most common form of kinyan formovable objects. Other kinyanim include chalipen, suddar,agav, or odiysah. SeeAppendix II for definitions of these concepts.
10. Lifting, pulling, holding the item, and bringing the item into one's property, arethe kinyanim hagba'ah, meshichah, yad, and chatzeirrespectively.
11. See Imrei Eish 21, Divrei Malkiel 4:139 who write that a contract for the saleof mitaltelin would be an effective kinyan as a situmta (see "Accepted businesspractices").
12. Choshen Mishpat 190:2, Kinyan Kesef. The buyer need not pay the entire salesprice for the kinyan. A partial payment is sufficient. See "Me Shepara - Karka."
13. Choshen Mishpat 192. Improving the property in a manner that demonstratesownership, such as enclosing it with a fence or plowing it in preparation forplanting.
14. Ibid. 191. For a contract to be a valid kinyan shtar, there are a number of requirements its form and structure. One should have a contract reviewed by a rav as well as a licensed attorney to ensure it meets the necessary requirements.
15. Ibid. 201:2.
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