Short-Circuited Contract?

Question

Chagai was delighted. He had just signed a contract
for the purchase of a beautiful apartment. He went about arranging the stage
payments to Amos, the present owner, with a smile on his face. Just before
the fourth (out of five) payments was due, Amos called him to inform him
that a short-circuit had ruined the electrical system in the apartment.
Chagai replied that obviously Amos would reinstate the electrical system at
his own expense. Does Chagai have the right to demand that Amos carries out
this repair? Can he back out of the sale and ask for a refund of all monies
paid?


Answer

It may surprise you to learn that the standard Israeli
apartment sales contract is no more than an undertaking to proceed with the
transaction. The vendor undertakes to sell the apartment and the purchaser
undertakes to buy, but the actual sale only takes place at a later date. As
with any other sale, the purchaser only undertakes to buy the apartment as
he viewed it prior to signing the contract. In our case, he undertook to buy
an apartment with an electrical system in good working order. Since the
original "goods" are no longer available, he is entitled to back out of the
deal. He would also seem to have the right to receive a refund of all his
payments. However, there is no apparent reason why he can demand that the
vendor repair the electrical system.

You might ask, "Why can the buyer cancel the deal? Surely
the fact that the electrical system short-circuited was no fault of the
seller? Do we not have a principle that Hashem excuses a person if
events occur which are beyond his control (oness Rachmono patray)?
" The short answer is that even though Hashem has no complaints
against a person for not fulfilling his obligations through circumstances
beyond his control, he can still not be regarded as having actually carried
out those duties (k’mahn d’ovid lo amrinon). The Emek HaMishpot
(1:38) cites the Shach to Choshen Mishpot (21, Note 3),
who discusses the case of Reuven promising to perform an act which is
beneficial to Shimon. However, he makes his promise contingent on Simon
reciprocating by doing something for him by a certain date. The date passes
and Shimon has not fulfilled his side of the deal. Shimon brings proof that
his non-compliance was due to circumstances beyond his control.
Nevertheless, says the Shach, Reuven is under no obligation to keep
his promise. One can not blame Shimon for his lack of compliance. On the
other hand, his entitlement to the promised benefit was dependent on a
certain act being performed. Since this act has not taken place, albeit
through no fault of Shimon, the obligation no longer exists. One can not
place an obligation upon Reuven because of Shimon’s accident!

Similarly, in our case Chagai agreed to purchase the
apartment on the implied condition that it would be in the same condition at
the time of the actual purchase as it was when he signed the contract. Since
this is no longer the case, albeit through no fault of Amos, the vendor, he
is no longer under any obligation to buy. Additionally, the fact that Amos
already has some of the money in his possession does not entitle him to
retain it. These payments were conditional on the original apartment being
delivered to the buyer. Amos is no longer capable of fulfilling this
condition. He must therefore return all monies paid (Beis Meir,
Even HoEzer
38).

Chagai really wants this apartment. It seems that the
only way to proceed is to pay for the repairs out of his own pocket. Is
there any way he could have protected himself against post contract
accidental damage? Had he added a clause, obligating the vendor to provide
him with the apartment as it was at the time of signing the contract, Amos
would have had no choice but to carry out the repair himself (Emek
HaMishpot
, Ibid).