Question
I persuaded the local authorities to put the area next to my apartment up for auction. I desperately need the room because I have a daughter who is paralyzed and many other children, and it is because of my situation that the municipality agreed to place the area up for auction. The only reason the municipality did not sell it to me directly is because legally they may only sell by means of an auction. Realizing the situation, almost everyone refrained from bidding. However, one person who only wants the property in order to resell it to me at a higher price, placed a bid. In order to prevent him from raising the price, I offered him a hundred-fifty thousand dollars to cease bidding and thus to allow me to purchase the property. He accepted my offer, stopped bidding and I bought the property. Now he is asking me for the hundred-fifty thousand dollars. I never intended to pay him anything but was desperate to get him to withdraw. Am I obligated to pay?
Answer
The first issue to consider is a general question: whether one who offers someone money to refrain from doing something is legally obligated to pay. Whenever we obligate someone to pay money there must be justification.
Since you did not damage or borrow money, the only reason why you might be obligated to pay is if you created an obligation on yourself by virtue of your word. If one wishes to create an obligation upon himself according to many Rishonim (including the Ramban and Rashbo and their opinion is cited by Sema (CM 40, 1) and Shach (40, 2)) mere speech without performing an act of kinyan cannot create an obligation. Even the Rambam, whose position is recorded by SA (40, 1), requires one to commission witnesses expressly to listen to him pronounce his obligation, or to use special language, in order to create an obligation. Since you did not do either of these, you did not create an obligation upon yourself by merely saying you would pay money.
Furthermore, the Shach (40, 4) proves that even the Rambam who maintains that one can obligate himself verbally, stipulates that the obligation must be unconditional. Since your obligation was conditioned on your competitor's withdrawing from the bidding, even according to the Rambam you did not create a monetary obligation upon yourself.
Since based on the above you could not just create a monetary obligation by means of your word, the one way that you could have become obligated is if we consider you as having hired your competitor as your worker to refrain from bidding and promising to pay him to cease bidding. When one hires a worker, even if the employer just tells his employee to perform a task for him, SA rules (CM 333, 2) that the employer becomes obligated if he starts to work on his behalf. (This point is made by the Rivosh (res. 476) that is cited by the Beis Yosef (331, mechudsh 1).)
However, we note that the task that your competitor was asked to perform on your behalf is not a typical task that an employee performs on behalf of his employer. Normally the employee does a positive action, whereas here you offered him money to refrain from bidding. Therefore, we must examine if that qualifies as employment.
There is a case in the Gemara (Kesubos 81B) where someone was offered money to refrain from acting. The case in the Gemara concerned a lady whose husband died without children and had brothers. The oldest brother, A, wanted to fulfill the mitzvo of yibum by marrying his brother's widow. However, a younger brother, B, who could not perform yibum since the oldest brother had preference (a Torah rule), wanted to prevent A from doing yibum by giving a get to the widow. Even though the get would not free the widow from the need to have chalitzo, it would prevent A from performing yibum which B did not want him to do because then A would inherit all of the dead brother's assets.
In order to thwart B's plan, A told B that he will share the dead brother's inheritance with him when he performs yibum. Rashi comments that A and B made a kinyan in order to seal their agreement. The Beis Dovid (cited by Pischei Teshuvo 176, 4) deduces from the fact that Rashi mentions that they performed a kinyan, that we do not consider A as having hired B to refrain from giving a get since, as we mentioned above, if that were so, a kinyan would not have been necessary. The Beis Dovid explains that the reason Rashi did not view their arrangement as employment is because one can only employ someone to act on his behalf but not to refrain from doing something.
The principle that an agreement to refrain from acting is not considered an employment agreement is also stated explicitly by the Kesef Kodshim (185, 1). A third poseik who rules this way is the Machane Efraim (Sechirus 18). In his case A, who was an agent, told B that he will share with him his profits if B does not work that day. The Machane Efraim only considers whether A must pay B because he benefited from B's loss. He does not even suggest the possibility that perhaps A must pay B as his employee. A fourth poseik who states this principle is the Erech Shai in one place (CM 228,18). However, in another place (EH 93) he attempts to refute the proof of the Beis Dovid, but one can easily refute his refutation.
Since you never legally obligated yourself to pay your counter-party, we have one reason you do not owe your rival the one hundred-fifty thousand dollars you told him you would pay. However, if there were just this reason you would be a mechusar amono (an untrustworthy individual) which one is not allowed to be. (See CM 204 where this is discussed and also Mishpatei Yosher vol. 1 where this is discussed in great detail.). Furthermore, you would be a rammai (a cheat) as the Gemara calls the older brother in the case cited earlier.
However, since you never intended to pay, based on a Gemara in Yevamos (106A) there is a second reason why you are not obligated to pay. The Gemara discusses a widow whose husband died without leaving children. Her brother-in-law wanted to perform yibum but he was not very reputable and it was clear to all that the only reason he wanted to perform yibum was to inherit his deceased brother and not in order to fulfill the mitzvo. The widow's problem was that the Torah does not grant the widow the power to prevent her brother-in-law from doing yibum with her.
The Gemara says that the Rabbis should tell the brother-in-law to perform chalitzo on condition that the widow will pay him two hundred zuz which was a very significant amount. After he performs chalitzo the widow is not obligated to pay him since she can say meshate hoyisy: when I agreed to pay you it was not with intention to pay.
The Gemara says that the reason we allow the widow to trick her brother-in-law is that he was supposed to do chalitzo without being paid. Thus, we derive the principle that one is allowed to trick someone into doing what he is supposed to do.
The Gemara proves this rule from a beraiso that rules that if someone who escaped from jail and desperately needs a ferry to escape to the opposite bank of a river offers an exorbitant amount to the owner of the ferry to transport him immediately, he is not obligated to pay, since the owner of the ferry was obligated to transport him for the usual price. This is the ruling of the SA (CM 264, 7). The ruling of the Gemara in the case of the widow who fools her brother-in-law is also ruled by the SA (EH 169, 50). The Beis Shmuel (note 53) cites the Rashbo who says that even if the woman made a kinyan to pay her brother-in-law she need not pay him.
Based on this, in order to determine whether you are entitled to free yourself from paying with the claim that you never intended to pay, we must determine if your rival was acting improperly by bidding against you.
There are in fact two reasons he was acting improperly. One reason is that you had the right of first refusal due to the din of bar metsro, since you own a neighboring apartment and your rival does not. Even though the position of Rabbeinu Tam is that for houses there is no rule of bar metsro, the unequivocal ruling of the Ramo (CM 175, 53) is that there is a din of bar metsro.
A second reason is based on the din of oni hamenakef. This rule is discussed in the Mishna (Gittin 59B). If A banged on an olive tree in order to knock down and collect the olives, then if B takes the olives, he is considered a thief even though A never formally acquired the olives. The reason is because B is not allowed to use A's efforts in order to prevent A from benefiting from his efforts.
In your situation you say that the only reason there was an auction is because you convinced the authorities to do so and they only did it because of your situation. Since your rival could not have succeeded in having the property auctioned off, your rival was trying to use your efforts in order to derive benefit and prevent you from benefiting from your work. Thus, he would have violated the prohibition of oni hamenakef.
Thus, there are two violations that your rival would have transgressed if he had purchased the property. Therefore, you can claim meshate hoyisy as in the cases in the Gemara.
The result of this is that you are not even considered a rammai or a mechusar amono for fooling your rival.
In conclusion: There are two reasons you do not owe your rival any money even though you promised him one hundred-fifty thousand dollars to refrain from bidding and you did not act in an immoral manner either by fooling him.
