Pidyon Kaparot Now

Devorim-Offering to Buy an Item that is Not For Sale

 

Question

My son is getting married soon and I would like to buy my neighbor’s house for him. My neighbor’s house is not for sale but I think that if I offer him a good price he will be happy to sell it since he can use the extra money and for him the house has no special value. Am I allowed to approach him with an offer or will I be violating the prohibition of lo sachmod or lo sis’ave?

Answer

In order to answer your question we must study how the Rishonim explain the two prohibitions you cite.

  1. R. Yonah (Sha’arei Teshuvoh 3, 43) explains both of the prohibitions you cited, together. He writes that one violates the prohibition of lo sachmod even if he pays for his purchase. However, he explicitly limits the prohibition of lo sachmod to where the seller, even in the end, does not really want to sell and only does so because he cannot stand up to the pressure. He explicitly writes that the reason one violates lo sachmod when he beseeches the seller to sell, is because even when the seller agrees to sell, the sale is really against the seller’s true desires, i.e. it is a forced sale.

He adds, in the same vein, that a very important person may not even make an offer to buy since the seller may not be able refuse his offer because of the importance of the customer, and may sell even though he really does not want to sell. Such a person may make an offer only if he knows that the seller will only agree to sell to him if he really wants to do so.

He writes that we are even enjoined not to make plans to do such a thing. This seems to be what, in his opinion, the Torah added in the prohibition of lo sisave: that one may not even think about acting in a manner that violates lo sachmod. The difference between lo sachmod and lo sisave is not in the degree of pressure or the desire by the seller to sell. The difference is only in the buyer’s actions. To violate lo sachmod one must actually exert pressure whereas one violates lo sisave at an earlier stage, when one makes up in his mind to exert pressure in a manner that violates lo sachmod. Thus, according to Rabbeinu Yonah, you may make your offer as long as you do not contemplate putting pressure on the seller to accept your offer.

The Ramban apparently understands like R Yonah as he writes (Devorim 13, 9) that the difference between lo sachmod and lo sisave is only that lo sisave is purely in the heart, and one violates lo sachmod when he “carries out what he thought in his heart.” This indicates that if the action does not violate lo sachmod the thought does not violate lo sisave. Similarly, he writes in another place (Devorim 5, 18) that if one wants to steal another person’s object and the only thing preventing him from doing so is fear of the police etc. then he violates lo sisave. This indicates that in order to violate lo sisave one must be so determined to acquire the object that only due to circumstances beyond his control he isn’t able to do so. However, if one merely would like to acquire the object and even wants to offer to buy it, he does not violate lo sisave. This is also the way the Maggid Mishnah (Gezeilo 1, 10) understood the opinion of the Ra’avad as he writes, “The opinion of the Ra’avad is that one violates lo sisave when he wants to buy against the owner’s true desire.”

The Rambam (Gezeilo 1, 9), whose words are quoted by the Shulchan Aruch (CM 359), also writes that one violates the prohibition of lo sachmod only if he beseeches the seller and sends others to pressure him to sell and eventually the seller gives in and sells to him. When he describes lo sisave (1, 10) he says that one violates the prohibition when he contemplates how he can persuade the owner to sell to him. However, he does not say, like R Yonah, that he only violates the prohibition if he thinks how he can get the owner to sell even against his will. Similarly, in the Sefer Hamitzvos (Lo sa’asei 265-6) he writes that the prohibition of lo sisave is to desire someone else’s possessions, because that will lead him to connive to somehow get the owner to sell to him, and that will perhaps lead to actually stealing if he was not successful in persuading the owner to sell. He does not say that his thoughts have to be how to get the owner to sell against his will and it is not clear how much of a desire one has to have in order to violate the prohibition. The Toafos Re’aim (commentary to Yeraim 115, 2) understands the Rambam like the above Ramban, that one only violates lo sisave when he set his mind to acquire the object in any manner possible, but it is not clear that this is the opinion of the Rambam.

The Chinuch’s (mitzvah 417) approach to lo sisave is similar to the Rambam in the sense that he writes that the reason for the prohibitions of lo sisave and lo sachmod is that intense desire will lead one to apply pressure on the owner to sell to him and that leads to theft.

In fact, the Chinuch says that since both lo sachmod and lo sisave are prohibited because Hashem wants to prevent us from stealing, even non-Jews are enjoined since these mitzvos are included in the prohibition on non-Jews to steal. The only difference between Jews and non-Jews is that for Jews these two are considered as separate mitzvos, whereas for non-Jews they are both included in the prohibition against stealing.

He also writes that one violates lo sachmod if the sale is against the owner’s true will but for lo sisave he writes that one violates the prohibition when he “sets his mind to desire someone else’s possessions.” It is not clear what degree of desire is classified as “set his mind.” He also says that one violates lo sachmod when the sale is against the owner’s true desire which agrees with R Yonah but is against the Rambam.

It could very well be that the reason the Rambam and R Yonah differ on the issue of lo sisave results from a difference they have concerning the violation of lo sachmod. Whereas both agree that one only violates lo sachmod if he pressures the seller into selling against his will, nevertheless R. Zalman Nechemia Goldberg (Beis Aharon Veyisoel Nissan-Iyar 5759) notes that they differ on what is the actual violation. R Yonah understood that the violation is the actual sale against the owner’s true will, as the Ra’avad also maintains in his glosses on the Rambam, but the Maggid Mishnah (commentary to the Rambam) writes that Rambam maintains that the violation is the pressure that leads to this sale and, even if eventually the seller wants to sell, nevertheless, the buyer violated lo sachmod because of the pressure that he applied. The Rambam never says that one only violates lo sachmod if he eventually bought against the seller’s will.

This dispute between the Rambam and Ra’avad manifests itself in a second issue. Rambam says the reason one who violates lo sachmod doesn’t receive malkos is because the violation does not involve an action. However the Ra’avad asks that the sale is an action. The Ra’avad does agree there is no malkos but for a different reason: because one can always remove the violation of lo sachmod by reversing the sale. Obviously the Ra’avad maintains that the sale is the violation, whereas the Rambam sees the pressure as being the violation and the sale as just a condition. Therefore, in the Rambam’s opinion, even if the sale is reversed the violation remains.

In either case we can answer part of your question, namely, that you will not violate lo sachmod because even if the sale goes through eventually it will not be a coerced sale which, according to the Ra’avad, Chinuch and R Yonah, is what is required in order to violate lo sachmod. You also must not apply pressure, which is needed in order to violate lo sachmod according to the Rambam.

The remaining issue is lo sisave. It would seem that according to the Ramban and R Yonah you will not violate lo sisave. However it is not perfectly clear what the Rambam and Chinuch would rule.

We should note further that there are Rishonim like Rashi in Chumash (Devorim 5, 18) and Targum Onkelus, the Yeraim (115) and the Semag (Lavim 158) who maintain that there is no additional prohibition of lo sisave. They hold that it and lo sachmod are one and the same and one only violates if he pressures and also eventually buys against the owner’s true desire.

There are several Acharonim who discuss this matter. The Prisho (359, 10) understands that one only violates both prohibitions if the object he wishes to acquire is difficult for the owner to do without. It would seem that in your case where he can buy a different house, there will be no problem. The Oruch Hashulchan (359, 13) writes that one should only buy from a store or from an individual who offered something for sale but one should not approach someone to buy from him in order to avoid lo sachmod. This would seem to mean that you may not initiate an offer to buy. However, it seems clear that the Oruch Hashulchan is advising and not forbidding since we showed before that if one does not apply any pressure he certainly does not violate lo sachmod. The Betseil Hachochmo (3, 43) discusses the Rambam and understands that he too maintains that even lo sisave one only violates if he thinks how to pressure the owner to sell, but to make an offer one or two times will not violate any prohibition.

In conclusion: Certainly by just making an offer you do not violate lo sachmod and many Rishonim – and perhaps all – would agree that you also do not violate lo sisave. So make your offer but be careful not to apply any pressure on your neighbor to take up your offer.

 

 

 

 

 

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