Question
I signed a contract to purchase an apartment. The apartment had an extension that had been built illegally. I discussed with the seller my desire to have the extension legalized. In order to do so one has to file plans with the city planning commission and get them approved, which is not a foregone conclusion. Therefore, we agreed that I would deposit thirty thousand dollars in escrow with his lawyer and if the expansion is legalized within two years he would get the money and if not the money will be returned to me. When we wrote the contract he wrote that if the plans that were attached as an appendix to the contract were approved, he would get the thirty thousand dollars. However, the plans that were attached as the appendix were not plans to legalize the extension but rather to build a reinforced room which we never discussed and is worthless to me. He now agrees that this is not what we discussed, but claims that since I signed the contract and he carried out what it says, he is entitled to the thirty thousand dollars. However, I never agreed to such a thing and when I signed the contract I assumed that the plans that were attached were what we discussed and so I never studied them. Who is right?
Answer
Your question is essentially whether a sales agreement that was signed by someone without reading the agreement is binding on the signer. It would seem that the contract should not be binding since every transaction requires the agreement of both parties and your seller agrees that you signed to buy something that has no value for you and undoubtedly never intended to pay thirty thousand dollars for it, and you only signed because you didn’t check out the contract.
Similar situations are discussed by the Rishonim and brought in the SA in three places and it might seem from them that perhaps the contract is binding anyway, because you willingly signed the contract in spite of the fact that you did not read a key part of the contract. Therefore, we will study the cases that are discussed by the SA and analyze them to see whether any of the rulings of the SA can serve as a source to obligate you to fulfill the terms of the contract that you signed.
One ruling of the Rashbo (res. Meyuchoses 77) discusses a document which a Jew signed waiving certain rights that he was entitled to. The document was written in a foreign language and the Jew who signed claimed that he did not understand the foreign language, and therefore the waiver that he signed should be invalidated.
The Rashbo ruled that the waiver is valid for two reasons. The first is that since generally people don’t sign documents unless they know what they are signing, we assume that one who signed either knows the language or he had someone read it to him before he signed. Therefore we do not believe that he was unaware of what he signed.
He says that even in case the other party admits, or witnesses testify, that the one who signed the waiver did not know what he was signing, nevertheless, his signature is binding. His argument is that when one signs a document without bothering to read what he is signing, he is stating that he is placing his trust in the scribe that he wrote what was agreed upon. Therefore, if later on there is a disagreement between the scribe and the person who signed on the document whether what is written in the document is what was agreed upon, the scribe is believed. He derives this from the Gemara (Gittin 64A) that rules that if a husband prepares a valid get and gives it to an agent who was empowered by his wife to accept the get on her behalf, and later on the husband claims that he gave it to the agent merely to hold it on his behalf but the agent claims the husband gave it to him to receive as a get on the wife’s behalf, the agent is believed since the get was given into his hands. The reason the agent is believed is because the husband’s action – handing over the get – shows that he trusted the agent that if he later says it was given as a get he is telling the truth. The Rashba’s decision is ruled by the SA (CM 45, 3) without any dispute.
Another ruling of the Rashbo (1, 629) concerned a person who divorced his wife. The wife then asked to receive what the husband obligated himself to give in his kesubo (which was more than the standard amount-Beis Shmuel EH 66, 29). The husband claimed that he is unlearned and was unaware of what was written in the kesubo, a claim which was disputed by his wife. The Rashbo rules that we do not accept the husband’s claim since if we would accept such a claim every unlearned husband would make this claim, effectively nullifying the enactment that a wife is entitled to a kesubo. Therefore, we surmise that witnesses made the husband aware of what was written in the kesubo before the husband had them sign on the kesubo. He adds that this is his opinion, but that the Ramah (a Rishon) ruled that we accept the husband’s claim.
The opinion of the Rashbo in this responsa is ruled by the SA (CM 61, 13). The Sema (note 23) and Shach (note 18) both add that based on the earlier ruling that we cited, even if the husband’s claim is true he would be obligated to pay whatever it says in the kesubo because he obligated himself to carry out whatever the scribe wrote.
This ruling of the Rashbo is cited by the Beis Yosef in Even Hoezer (end siman 66) as well and is ruled by the SA (66, 13). The Ramo and Beis Shmuel explain that the reason we do not accept the husband’s claim is because witnesses affixed their signatures to the kesubo and the meaning of their signature is that they testify that the husband properly obligated himself to whatever is written in the kesubo. Therefore, if the husband’s understanding is necessary they in effect testified that the husband was aware of the content of the kesubo.
A third responsa of the Rashbo (1, 1156) concerned a woman in whose kesubo it was written that she owned a field which bordered a field that belonged to the community. She later claimed that the neighboring field was hers as well and not the community’s. She said that she was unaware at the marriage ceremony that the kesubo stated that the neighboring field belonged to the community and not to her and the Rashba ruled that her claim is accepted.
The Knesses Hagedolo (CM BY 147, 8) asks that this seems to contradict the other responsa of the Rashba, where the Rashba ruled that we do not accept a claim that a party was unaware of what it says in a document on which he or witnesses signed. He suggests two resolutions. The first is that one cannot claim that he was not aware of the focus of a document since one always pays attention to that. However, mention of the ownership of the neighboring field when delineating the bride’s property is a side fact that can be easily overlooked and therefore, the issue of ownership of that field cannot be settled by means of this document. His second solution is that perhaps a bride is uniquely preoccupied at the time of her marriage and doesn’t pay attention to every detail. (A woman is different from a man because the man prepares the document whereas the wife first hears what it says when it is read under the chuppah, a time when most women are preoccupied with other thoughts.) If one follows this approach even a side detail can be proven from a document if the obligating party is not a bride.
Having studied the three related responsa of the Rashbo, we can now consider whether any of them can serve as a source to obligate you to pay the thirty thousand dollars. The third responsum obviously is not relevant since if anything it rules that under certain circumstances one’s signature does not obligate the one who signed. However, since neither of the conditions of the Knesses Hagedolo applies in your situation, we also cannot derive that you are not obligated.
The second responsa also cannot serve as a source to obligate you to pay since the issue in the second responsa was whether to believe the husband in his claim that he did not understand what he obligated himself to pay. However, there was nothing unusual in what the husband obligated himself to pay and therefore, the husband’s claim that he was unaware is not accepted. By contrast, in your situation it is obvious that you did not realize what you were signing since no one pays thirty thousand dollars for something that has no value to him. Furthermore, even your seller admits that this exact amount was negotiated earlier as payment for legalizing the existing extension and not as payment for a fortified room. This is further evidence that you never intended to obligate yourself to pay for the fortified room but rather meant to pay for legalizing the extension.
Finally, we need to consider the first responsum. The first argument does not apply for the reason we just gave, namely that in your situation there is strong evidence that you were unaware what you were signing to pay for. The second argument does not apply as well since the Rashbo only ruled that one who signs without reading what he signs trusts the one who prepared the document that he prepared a document that reflects what was agreed upon. However, in your case the seller agrees that what you signed was never agreed, which means that he violated the trust that placed in him. We should recall that the Rashba based his ruling on the laws of a sholish who is granted trust to claim that the get was given to him in order to divorce the get owner’s wife. However, he was never granted power to use the get to divorce the owner’s wife if it was not given to him for this purpose. (This is evident from the entire discussion in Gittin 64A and the first two comments of Rashi.)
Since there is no source to create liability on you for something you were fooled into signing, we revert to what we wrote at the outset that you should not be obligated to pay since one is only obligated to fulfill obligations that he willingly accepted upon himself and not those he was obviously fooled into accepting. We will now see three poskim who ruled similarly.
Our ruling is similar to the ruling of the Aruch Hashulchan (45, 5) concerning the first responsum of the Rashbo. He writes that if, when the document was read before the signatory, it was read as saying that the signatory must pay one hundred but in fact it said two hundred, then the signatory is not obligated to pay two hundred because his signature was only intended to obligate himself to fulfill what he was told it says. This is almost exactly like your situation where you were told that the appendix would have plans to legalize the expansion and not an unneeded fortified room.
We should note that the Rashbo’s comment serves as strong evidence for the Aruch Hashulchan’s ruling since the Rashbo says the reason the signature of one who cannot read a language is binding is because he relied on what was read to him. Obviously, he maintains that if it was read to the signatory incorrectly, what is written does not obligate the signatory.
Similarly, the Mishne Halachos (17, 98) invalidated a shtar borerus (arbitration agreement) of a beis din that changed the text of their shtar borerus and did not alert the plaintiff who had, in an earlier din Torah, signed on the previous version and assumed (incorrectly) that the text had not changed. Even though the plaintiff could have read what was written, nevertheless, he was justified in not reading it since he had reason to believe he knew what was written from earlier cases.
This certainly is true in your case since you had even more reason than the plaintiff in the case of the shtar borerus to believe that the plans were to legalize the expansion and not for a fortified room. The Mishne Halachos explicitly states that the Rashbo’s ruling is limited to one who had no reason to think he knew what was written in the document that he signed, a condition that your agreement does not satisfy.
Another reason to invalidate the obligation to pay for the fortified room is a ruling of the Mahariaz Anzil (res 49), a disciple of the Ketsos. He was asked about the validity of a document that was signed by a blind person, selling his house to his son-in-law. He invalidated the sale since the son-in-law who brought the blind person the document to sign was an interested party since he was the purchaser. The Mahariaz claims that the Rashbo’s ruling that one who does not read a document thereby grants trust to the scribe, is limited to cases where the scribe is an uninterested party since people don’t trust interested parties. However, in his case the son-in-law was an interested party and thus the Rashbo does not apply. Similarly, in your case, the seller was an interested party and therefore, according to the Mahariaz Anzil the Rashbo does not apply.
In conclusion: Since you were fooled by the seller into signing a document that obligates you to pay thirty thousand dollars for something you never were interested in, and you did not receive what you did agree to pay thirty thousand dollars for, you are not obligated to pay anything and the lawyer is obligated to return the entire thirty thousand dollars to you. We should note that this is the secular law in Israel as well since the actions of the seller constitute choseir tom lev-dishonest behavior.
