Question
I made an agreement to sell my house for eight hundred thousand dollars which I thought was a fair price but we haven’t yet signed a formal contract. There are a few minor details that we didn’t decide yet because we are confident that we can work them out right before the signing of our agreement. Someone heard about the deal and offered to buy the house for thirty thousand dollars more. I then asked around and found out that many people would pay eight hundred thirty thousand and that I made a mistake by settling for eight hundred thousand. I have three questions. May I back out of our agreement and sell to someone else now for a higher price? If not, perhaps I can back out of the agreement and simply take the house off the market and wait another year and then sell it. Furthermore, if I may back out of the agreement, may I sell to the person who offered a better price or must I sell to someone else in order to avoid the issue of oni hamehapeich becharoro-selling to someone who intervened in a sale?
Answer
Since you haven’t yet signed an agreement your buyer has not yet acquired the house since he has not performed an act of kinyan. Therefore, if you change your mind you would not be stealing anything from him. However, you did give your word that you would sell him the house and he relied on your word. At this stage, the first issue is whether you would be classified a mechusar amono, an unreliable person, or not.
The detail that you provided that there are no significant outstanding issues is very important because if there were, since the customer could not be confident that he would be able to acquire the house, you would not even be at the stage where there would be an issue of mechusar amono.
Before deciding whether if you back out of your agreement you will be classified as a mechusar amono, it is important to understand the significance of being a mechusar amono and why one should avoid acting in a manner that would give him the status of a mechusar amono.
When the Gemara (BM 48A) discusses the issue of mechusar amono it cites a pasuk (Vayikro 20, 36) as the source for the prohibition to act in such a manner. The source is a drosho on the words “hin tseddek” which literally means that one must not possess false liquid measures. The Gemoro interprets this pasuk as including an additional injunction that one’s words of commitment must be immutable, meaning that when one says yes, his yes must remain yes.
Many Rishonim (Ba’al Hamo’or, Ba’al Ha’ittur and, according to many, Rashi) rule that the Gemoro remains with this position and one who violates his commitment and acts in a manner that is considered a mechusar amono is violating this Torah prohibition. Other Rishonim maintain that the Torah injunction refers only to one who at the very moment that he pronounces his commitment intends to violate his word, and not to one who later changes his mind. However, these Rishonim also agree that one who changes his mind later still violates a rabbinic prohibition. Thus, one is certainly forbidden to change his mind if it falls into the category of what is considered a mechusar amono. While beis din does not impose penalties on one who acts in this forbidden manner, beis din may publicize his misdeed (See Mishpatei Yosher page 350) in order to embarrass him and hopefully to cause him to fulfill his original commitment.
Thus, we must consider whether if you back out of your commitment you will be considered a mechusar amono. There is a major dispute among the Rishonim if one may back out of a commitment if circumstances change. The reason some are lenient is because the original commitment was only made based on the circumstances that were in place at the time the commitment was made. It is considered as if the commitment was given conditionally.
However, besides the fact that relying on the lenient position is difficult because the majority opinion is to be strict on this issue, your situation does not even fall into this category. The reason (See Nesivos Socheir 22, footnote 9) is because, in your situation, circumstances did not change. It is only that you now realize something that you did not realize earlier because you failed to investigate the market more carefully before committing to sell. When one makes a commitment without investigating the market value, his commitment stands and if he goes back on his commitment he is definitely considered a mechusar amono. Even if you just take your house off the market you will be considered a mechusar amono since you are still violating your commitment to sell to the first customer.
Even though your third question – if you are allowed to change your mind may you sell to the second customer – is irrelevant in your situation, it is relevant in other similar situations and is worthy of discussion. For example, suppose a second customer offered you much more, say a million two hundred thousand dollars for the house because it had special value for him. Since this is a change that was totally unexpected at the time you agreed to sell to the first customer for eight hundred thousand dollars, all opinions agree that you are not classified a mechusar amono for backing out of your original agreement since you justifiably did not take this situation into account when you made your original commitment.
In order to answer this question we must study a different set of halachos: the rules of oni hamehapeich becharoro. The issue is that the Gemoro (Kiddushin 59A) rules that if one person made up with the owner of a property to buy the property another individual may no longer attempt to buy the property. Even though the first customer has not yet signed a formal contract, nevertheless another customer may no longer do anything that interferes with the first person’s purchase.
In your case, if you sell to a customer who offers you a substantially higher amount the customer will violate this prohibition. Your question is whether you, the seller, will also be guilty of violating this halachah. The issue is whether, when the rabbonon forbade a person from attempting to purchase an item which the seller already agreed to sell to someone else, did they place the prohibition on both the buyer and the seller or just on the buyer because it is he who is behaving unethically, and not the seller.
While the issue is not discussed by the Gemara or the Shulchan Aruch, there are several poskim (Nachala Le’yoshua 29, Avnei Neizer CM 17, Maharshag (3, 117)) who rule that the prohibition applies only to the buyer. Therefore, in your situation, if you do not have an issue of mechusar amono and you back out of your agreement because you found a customer who is willing to pay you a higher price, you would not violate the prohibition of oni hamehapeich.
However, if you do sell to the one who made a better offer, even though you would not violate the prohibition of onei hamehapeich, nevertheless, you will be enabling the second customer to violate the prohibition of oni hamehapeich.
Enabling the second customer to violate this prohibition involves another issue. The issue is lifnei iveir. The Torah forbids helping a person to violate a Torah prohibition. Thus, the Gemara (Avodo Zoro 6B) rules that one may not hand a piece of eiver min hachai, meat of an animal that was taken when it is still alive, to a gentile since the gentile is not allowed to eat it.
In your case, the violation of oni hamehapeich is rabbinic. There is a major dispute among the Rishonim concerning the issue of lifnei iveir when the prohibition is rabbinic. Some rishonim, including Rabbeinu Tam (Tosafos Avodo Zoro 22A, as explained by Minchas Chinuch (232, 4)), maintain that the prohibition is from the Torah, namely, even when the violator only transgresses a rabbinic prohibition, nevertheless the one who assists him transgresses a Torah prohibition! Other rishonim, including the Ramban (Commentary to Avodo Zoro 22A), maintain that there is no prohibition at all. A third opinion is that there is a rabbinic prohibition.
This prohibition applies in your situation since without you, the second customer could not violate the prohibition. Therefore, in your situation, if you sell to the one who offered you the extra thirty thousand dollars you would, according to many, transgress two prohibitions. But if you sell to a customer who did not approach you, you would violate just one prohibition.
In conclusion: You must sell to the first customer and if you sell to the second customer you will violate two prohibitions, one of them perhaps, from the Torah: one is being a mechusar amono and the second lifnei iveir. If you sell to someone else or even take the house off the market, you will violate one prohibition of being a mechusar amono.
