Question
For personal reasons I want to buy an apartment in an area where there are very few apartments for sale. After much effort I found someone who wanted to sell. However, he only agreed to sell for fifty thousand shekels more than the usual price for this size apartment. Additionally, he said he will only sell if he finds something that is suitable for him to buy. Shortly before he got back to me that he found something suitable, I found an apartment that was fifty thousand shekels cheaper than the first apartment. Additionally, the apartment that I found is better because it is on a lower floor and has a view and is really worth approximately thirty thousand shekels more than the first apartment. Am I permitted to refuse the first apartment?
Answer
If you had signed a contract, you would not be able to turn down the first apartment since you would have fully acquired the apartment. However, since you did not sign a contract or even made a down-payment on the first apartment, you can refuse to purchase the first apartment. There is nothing that legally binds you to buy the first apartment.
The only issue is that perhaps you are violating the prohibition of acting as a mechusar amono-acting in an unreliable manner.
In order to answer the question, we have to clarify the nature of the prohibition. The source of the prohibition is the pasuk (Vayikro 19, 36) which the Gemara (BM 49A) as explained by Rashi (beg. word, ello) interprets as saying that one must fulfill his verbal statements. Therefore, for example, if one said he will sell something he is not allowed to renege on his verbal commitment even if the buyer will not suffer any loss due to his failure to carry out his verbal commitment.
However, the Gemara says that if A told B that he will give him a large present and A changes his mind, he is not classified as a mechusar amono, because we assume that the recipient did not put his full faith in A's promise. Thus, we see the basic parameters of the laws of mechusar amono: The prohibition applies only to statements that are perceived by the recipient as being full commitments on the part of the speaker.
In your situation the seller did not make a commitment to sell, since he said he will only sell if he finds something that is suitable for him to buy. Nonetheless, that does not preclude your being a mechusar amono if you renege on your commitment to buy, since it is possible that he relied on you to buy if he finds something to buy even though he did not commit himself unequivocally to sell. We see this from the case of the present since there only the one giving the present made a commitment.
Another common situation where this occurs is where someone expresses interest in buying a house but he tells the seller that he needs to first discuss it with his wife. If the seller replies that he will give him a week to give an answer then the seller may not sell to someone else in the interim even though the customer did not commit himself to buy.
Thus, in your case it depends on how you reacted to his response. If you told him that you will wait a certain period of time for him to find something, then there is an issue of mechusar amono if he returned to you with an answer before the end of the time that you allotted to him. However, if you did not set a time period, the seller should have realized that you did not commit yourself to buy from him because it is obvious that you will not wait forever.
This is similar to a ruling of the Chazon Ish (BK 23, 2) where one hired someone but only stipulated the amount that he will pay for his time, but did not stipulate for how long he is hiring the worker. The Chazon Ish ruled that since it is not plausible that the employer hired the worker forever, but at the same time there must be some time period, we have to use our judgment to determine the time period that the employer intended – and thus committed – to hire the employee.
In your case as well, obviously you did not intend to wait forever. Since it is possible that you did not guarantee to wait any period of time and bearing in mind that your seller was taking advantage of the lack of apartments for sale, it is plausible that you did not guarantee to wait for any period of time. Therefore, this is one reason you are not a mechusar amono if you buy the second apartment.
This is especially correct in view of the fact that he was asking fifty thousand shekels more than the going price and it was clear that the only reason you were willing to pay a premium is because of your pressure to find something. Therefore, he should have assumed that if you find something quicker and especially if it is cheaper you will opt for that choice.
A second factor that affects the mechusar amono in your case is the fact that circumstances changed between the time when you agreed to buy his apartment and the time when you want to back out. One type of change of circumstances that is discussed by the Rishonim is where the price changed.
The Ba'al Hamo'or (BM 29B) rules that if one agreed to sell when the market price was one hundred, and before ownership was transferred the market price rose to two hundred, the seller may change his mind about selling for a hundred. From the Rishonim (e.g., the Milchamos) it seems that the reason of the Ba'al Hamo'or is because after the price change, the earlier commitment now includes a commitment to give a large present. Since we saw earlier that the reason one may renege on a commitment to give a large present is because the recipient never fully relied on his benefactor's commitment, this means that the Ba'al Hamo'or maintains that the recipient never relied that if circumstances will change in this way that the seller will abide by his commitment.
The Prisho (204, 11) gives a slightly different explanation. He says that since the basis for the prohibition of mechusar amono is that one may not renege on his earlier commitment, there is no prohibition against backing away from one's commitment if circumstances change, because the one who gave the commitment never meant to commit himself in case circumstances change.
Both of these explanations apply in your situation. The explanation of the Ramban applies because in the present situation you will be giving the first seller a present of more than fifty thousand shekels which is certainly a large present. The explanation of the Prisho applies as well because it is obvious that you would never have committed to buy the first apartment if you had known that the second apartment is available.
A similar case was discussed by the Taz (YD 264, 5). In his case a father asked someone to serve as the mohel for his son's bris but then another person whom he preferred showed up. The Taz ruled that the father may change his mind since it is obvious that he would not have offered the honor to the first person if he had known that the second mohel would be available to perform the bris.
According to these Rishonim and poskim there is a second reason you may change your mind, namely, that circumstances changed for you. However, it is not clear that one can rely on these poskim since many Rishonim disagree. The Rambam (Mechiro 7, 8) and Mechabeir of SA (CM 204, 7) seem to maintain that one must be stringent. The Ramo cites both positions and says that one should be stringent. However, the Bach, Shach and Nesivos all rule that the issue remains in doubt.
Furthermore, the Chasam Sofer (res. YD 246), based on the Taz we cited earlier, ruled leniently in a practical situation. In his case a person committed himself to sell several possessions in order to buy a pot, but before ownership was transferred his bother passed away and he inherited a different pot, rendering his sale unnecessary. The Chasam Sofer ruled that the seller may void the sale due to the change in circumstances. Several other poskim have taken lenient positions on this issue.
In any case you have the first reason that allows you to act leniently.
In conclusion: There are two reasons you may back away from your earlier commitment. One reason is because the seller did not commit himself to sell to you and you never committed to a time that you would wait for his answer. The second reason is that many poskim permit you to back away from your commitment because circumstances changed.