Question:

I approached the prospective seller of an apartment intending to close a deal to purchase it, only to find him seated with another person interested in the apartment.

I am familiar with the principle of עני המהפך בחררה, according to which it is ethically reprehensible to snatch a deal from another Jew when I could find a different, equally suitable apartment to buy.

What distinguished this case was that I realized that the conversation was concerning a lease. I would like to know if I am permitted to offer to buy the apartment even though the first person would lose the opportunity to rent it. I think the owner would rather sell than rent.

Answer:

The fact that the owner would rather sell than rent may not be enough of a reason to allow you to snatch the apartment from the renter.

The halochoh of oni hamehapech becharrara applies even when the second person was unaware that someone else had preceded him. When he realizes that someone else had agreed to buy the item first, he must remove himself from the purchase so that the first customer will not have gone to the trouble of negotiating in vain. If, however, the seller approaches someone other than the first customer for some advantage, then the second customer does not have to remove himself from the deal.

For example, let’s say a family of eight wishes to rent an apartment and the two sides agree on all the terms. Then, not knowing this, a newly married couple shows an interest in the apartment, and the landlord prefers the young couple. The young couple can take the apartment without being considered reshoim. In that case, the landlord is interested in the second couple and is permitted to act in his best interests without worrying about the frustration felt by the first potential tenants due to wasted time and energy. ((This only applies to the principle of oni hamehapech becharoroh. The landlord must contend with another issue: mechusar amonoh. Once a person has made a verbal commitment to sell or purchase something, it is ethically wrong for him to change his mind. Jews are held to a standard of integrity that requires living up to their commitments. There are exceptional circumstances in which a person is not held accountable for his commitment, and this may be one of them. If the landlordlives next to the apartment for rent and might suffer from the additional noise made by the larger family, that may be enough of a reason to permit him to retract his commitment. The issue of mechusar amonohis beyond the scope of this article and the guidelines for determining whether the landlord is permitted to retract his commitment will not be addressed here. What is relevant is that the young couple may accept the apartment. ))  But that may only be true once the opportunity to rent to the young couple has already been brought to the owner’s attention. It does not mean that the young couple is allowed to approach the owner knowing that someone else has already closed a deal with him. ((SeeTeshuvasMaharshal 36. ))  Similarly, although you may believe it is in the owner’s best interest to sell to you rather than rent to someone else, you may not be able to approach him on those grounds. ((This may be the root of the dispute between some poskim regarding the permissibility of offering more money than the first person offered.

The Pischei Choshen (Hilchos Geneiva, chapter 9, note 32) rules that if the second person offers more than the first for the item, he is not in violation of the takonohof oni hamehapech becharoroh.

The Shulchan Aruch Horav (Hilchos Hefker and Hasogas Gevul 11) rules that there is a prohibition of oni hamehapech becharoroh even when the second person offers more than the first person, once the seller and the first customer have agreed on a price.

It would seem likely that the dispute revolves around the question of whether the benefit to the seller can be factored into the question when the first customer will be harmed. Surely, the seller gains from a higher offer and would prefer the second customer. The Pischei Choshen seems to rule that since the seller would like to sell to the second customer at a higher price, the second customer is permitted to make such an offer. The Shulchan Aruch Horav seems to disagree, maintaining that the second customer can never interfere with completed negotiations if it would cause a loss to the first customer.

The statement in the text is in accordance with the Shulchan Aruch Horav, which does not allow a second customer to interfere even if the seller would benefit.

It would seem to me appropriate to accept the opinion of the Shulchan Aruch Horav in a situation in which the negotiations have been totally completed.

The Ramo states clearly that the prohibition of oni hamehapech becharoroh is only applicable after all issues have been addressed and agreed upon and only the kinyonhas not been completed. The Perisha states that the custom is for Jews to avoid interfering in another Jew’s negotiations if it seems plausible that the first customer will come to some agreement with the seller even though they have not yet agreed on a price. Rav Moshe Feinstein (Iggros Moshe C.M. 60) supports thisminhag.

This minhag is known to apply when the second person is offering the same value as the first person. It is not clear that there ever was a practiced minhag in a case in which the second customer wants to offer more money than the first customer. Consequently, one can be lenient with the minhag. The power of minhag is only as strong as the known behavior. But in a situation in which the halochohdemands non-interference, it is prudent to accept the opinion of the Shulchan Aruch Horav. Regarding halachic issues, the compelling force is making sure one does the right thing; therefore it is less important to base the halochoh on common practice.

Therefore, if the first customer is still negotiating, another customer can offer more than the first (והיינו כשהמוכר יהודי). If they have completed the negotiations and only have the kinyon to complete, the second Jew should not offer more.

ואם הלוקח הראשון נכרי הכל שרי דמדברי הכסף קדשים מבואר דיסוד האי דינא מבוסס על מצות ואהבת לרעך כמוך. ועפ”ז מבאר שיטת ר”ת דבהפקר ומציאה לא נאמר האי דינא, משום דבמצות ואהבת לרעך כמוך אמרינן דחייך קודמין וה”ה הכא לענין מציאה והפקר, חייך קודמין. עכ”פ בנכרי לא שייך דיני בין אדם לחבירו. וכ”נ כוונת שו”ע הרב בדיני השגת גבול סי”א ודלא כמו שדייק בפתחי חשן (פ”ט מהלכות גניבה ס”ק ל”ז) מדבריו דבלא הוספת דמים יש איסור מהפך גם בלוקח נכרי, ולענ”ד כוונת הגר”ז דבנכרי הכל שרי.

In your specific scenario in which the prospective tenant has begun negotiations but has not completed them, one may make a better offer. Just as you would have been allowed to offer a higher rent (were you interested in renting it), you are permitted to offer to buy it, if that is advantageous to the seller. It is only when the negotiations have been totally completed that it is wrong to offer the seller more money or some other advantage. ))

There is, however, a different reason why you are permitted to approach the owner even though it will prevent the first customer from renting the apartment.

Apparently, the takonoh ((The Pischei Teshuva (C.M. 237:2) raises the question whether the issur of oni hamehapech becharrarais med’oraisa or miderabbonan. It seems from many acharonim that this is a takana. )) of oni hamehapech becharrara was decreed in a situation in which both customers are pursuing the same type of acquisition. If the first customer wishes to rent an apartment, a second customer should not interfere with the first deal by trying to rent the apartment for himself. If the first customer wishes to purchase the apartment, the second customer should not try to purchase the apartment for himself. However, should the first customer be interested in renting the apartment and the second person be interested in purchasing the apartment, the second person is permitted to attempt to buy the apartment. Although the first person will suffer just as much whether the second person rents or buys, the Mishne Lamelechpoints out that the takonoh does not apply to such a circumstance. (( Hilchos Gezeila 1:9. ))

This distinction seems to be accepted by Rav Akiva Eiger, since he quotes thischiddush in the margin of the Shulchan Aruch. ((Choshen Mishpot 237:1. It seems to me that this halochoh is not widely known due to a typographical error in the standard edition of the Shulchan Aruch (Lemberg and others). Rav Akiva Eiger quotes the Mishne Lamelech as saying that a person is not considered a rosho if someone else bought a home and then he came along and purchased it. This quote is incomprehensible. If the purchase has been completed, the original seller cannot sell it to a second person. If it is meant to refer to a person who is interested in purchasing a home and someone came along and purchased it, Kiddushin 59a states that the second person is indeed a rosho. In fact, the source of the entire prohibition is in such a circumstance. If we check the Mishne Lamelech, we see that there is a typographical error in Rav Akiva Eiger’s statement. It should read, “We have not found that when a person (wishes to) rent an apartment and someone comes along to purchase the apartment, the second person is considered arosho ))  The explanation of this chiddush is open to speculation. (( Perhaps the logic is based on the understanding that the issur only applies when both customers want the same item. For example, let’s say the first customer (Reuven) wants to purchase a particular house and the second (Shimon) is interested in purchasing the same house as well as another one. Shimon, however, will only buy the second house if he can also buy the first. In this situation, it would seem logical that the prohibition is not applicable since Reuven and Shimon are trying to make two different purchases. A rental is generally for a limited time, whereas a sale is forever. This difference can perhaps allow us to regard the two parties as vying for two different purchases; that may be why this case is not included in the laws of oni hamehapech becharoroh. If you have another explanation of the Mishne Lamelech, please suggest it. ))

Therefore, in your situation you may purchase the apartment even though someone else is interested in renting it.


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