Question

Danny found an apartment which suited his needs. He entered into
negotiations with the owner, who wished to add numerous conditions to the
sale. These included the owner’s right to take the marble tiles in the
living room with him! After a month of exhausting discussions, the two
parties finally came to an agreement. They went to a lawyer to draw up a
detailed contract. The seller painstakingly listed all his conditions, but
for some reason, the one concerning the floor was not inserted into the
contract. Danny kept quiet, thinking that the seller had changed his mind.
Three weeks later, when Danny was measuring the windows for curtains, the
owner showed up, accompanied by two muscular workers. “I have come to remove
the marble flooring,” said the seller. Danny’s response was to show him the
contract, where no mention of the flooring was made. “Since we had made a
verbal agreement, it does not matter that this detail was not included in
the contract,” retorted the seller. Who is right?

Answer

The
Remo writes (Choshen
Mishpot 207:1) that if certain conditions were agreed verbally but
not written into the bill of sale, they still form an integral part of
the transaction. The
Nesivos (Note 19) qualifies this statement by saying that such verbal
conditions are only binding if they were discussed immediately prior to
signing the document. However, if there was a time lapse between the verbal
agreement and drawing up the contract, the omission of the conditions means
that they do not form part of the deal. Accordingly, since the seller did
mention the flooring clause as the contract was being written, it would seem
that it is part of the contract, even though it was not specifically
mentioned therein.

However, the
Mishpat Sholom,
quoting the questioner in
Teshuvos P’nei Yehoshua
(the Meginei
Shlomo – 2:100), further qualifies the ruling of the
Remo. He is of
the opinion that prior verbal agreements only form part of the transaction
even if they are not written into the contract if no conditions whatsoever
are listed in the document. We can then argue that the parties relied on
their verbal agreements as far as these conditions are concerned. But if
other conditions did feature in the written contract, but just this one was
omitted, we can conclude that the parties had changed their minds and were
no longer insistent on its inclusion. In our case, we would have to conclude
that the omission of one condition, when others are included in the written
contract, means that it does not form part of the transaction.

The
Emek HaMishpot
(1:34) makes an additional point. Nowadays, it is customary to enshrine
every minute detail of the transaction in the written contract. Thus, the
fact that a previously discussed condition does not feature in the document
would act as evidence that the relevant party was prepared to forego its
conclusion. Furthermore, even if
all of the
previously agreed conditions were omitted from the contract, they would not
form part of the transaction. Since it is current practice to write all
conditions into the contract, the fact that the relevant party did not
insist on their inclusion denotes that he was prepared to proceed with the
sale unconditionally. (He bases his argument on the
Meginei Shlomo’s
answer in Responsum No. 101.) This would be further reason for Danny to
argue that he holds like the
Meginei Shlomo
and the fact that the seller did not insist on the inclusion of the flooring
clause means that he decided to forego this condition.