Tape Transactions


Dan agreed to buy Gad’s car. Since Gad had a top-quality tape player in
his car, he told Dan that it was not included in the deal. When Dan came to
pay, Gad observed that he was upset at not receiving the tape player with
the car. "You can have the tape as well," he reassured Dan. The next day Dan
took delivery of the car—minus the tape! Does Gad have an obligation to give
Dan the tape?


Whenever conditions are introduced into a sales
agreement, whether by the buyer or by the seller, these form an integral
part of the transaction. Failure to meet these conditions will invalidate
the sale (Shulchan Oruch, Choshen Mishpot 207:1). It is
expected that each party will try to introduce conditions which are for his
own benefit. What happens if the seller inserts conditions which are to the
advantage of the buyer? The Remo (Ibid.) rules that these conditions
are invalid. Such conditions are viewed as being merely idle talk. The
(Note 3) explains that the fact of the buyer failing to repeat the
condition the seller added for his benefit shows that he does not take him
seriously. "He probably is just trying to reassure me. If I repeat the
condition he added for my benefit, I am afraid he may change his mind,"
reasons the buyer. At the end of the day, he is prepared to purchase even
without these beneficial terms. The Remo qualifies this rule by
stating that only when negotiations are drawing to a close do we deem the
seller’s conditions for the buyer’s benefit to be invalid. However, when
discussions are still at the early stages, if the seller adds conditions for
the buyer’s benefit, these are held to be an integral part of the sale.

How do we define these two stages of negotiation? The
(Ibid. Note 1) states that as long as the parties have not yet
reached agreement on the price, the transaction is considered to be still at
the early stages. If the seller then suggests terms which are to the buyer’s
advantage, these are fully binding. Logically, we can assume that the buyer
only agreed to purchase at this price because of these favourable terms.
However, if a price has already been agreed and then the seller wishes to
improve the terms for the buyer, this is called "negotiations drawing to a
close". The buyer agreed to the price even without the additional favourable
terms. We can argue that he does not take these new conditions seriously, as
above. The terms of the deal are final, even though no kinyan (act of
acquisition) has been made, nor has money exchanged hands. Obviously, if a
kinyan has already taken place, neither side can introduce new
conditions, even if they are for their own benefit. The kinyan locks
both sides into the agreed transaction. On the other hand, should the buyer
already have made payment but not yet performed a kinyan, either he
or the seller can still add terms which are for their own good – but not for
the good of the other party.

How do these laws apply to our case? Dan and Gad had already agreed on a
price. Since negotiations were drawing to a close, any condition added by
the seller for the buyer’s benefit would not be valid. Accordingly, when Gad
agreed to leave the tape in the car, contrary to the original terms of sale,
this did not become a valid condition of sale. However, had Dan shown that
he took Gad’s new offer seriously by repeating his words, we would view this
as the buyer adding a condition for his own benefit. It would then have
become an integral part of the sale. The Emek Hamishpot (1:35) adds
that even if the buyer just shows his approval of the new terms (by saying,
"That’s fine," etc.), the new condition is binding. Once again, the buyer
has indicated that he takes the seller seriously. Finally, even though Gad
is under no legal obligation to give the tape, he is not a man of his word
if he fails to do so.

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