Hilchos Choshen Mishpat
Volume II : Number 35
"Ani HaMehapech B'Charara" - Tortious Interference
Reuven has made an agreement to purchase a home from Shimon, however no
Kinyan (formal acquisition) has been completed between them. Is Levi
permitted to interfere and try to get Shimon to sell the home to him?
- A. If a person has made an agreement to buy or lease a house, car, or
any other item from someone, and a price has been agreed upon, even
though no Kinyan has been completed, it is forbidden for a third person
to attempt to interfere and try to buy or lease it for themselves. In the
language of our Chaza'l, this is called a "Ani HaMehapech B'Charara" -
literally: an impoverished person chasing a crust of bread.
This prohibition applies even if the second person (Levi) is prepared to
offer a higher price than what the buyer and seller have already agreed
If someone purchases an item, and only after the purchase finds out that
the seller had actually agreed to sell it to someone else, the buyer must
void the sale for the benefit of the first person (if he is still
interested in purchasing it).
In the above situation, if the buyer refuses to return it to the first
person, the sale or lease is effective and it does belong to the actual
buyer. However, he has transgressed a Rabbinic prohibition, and our
Rabbis call him a Rasha (wicked). (1)
- B. The Halacha mentioned above is true even if the buyer and seller are
still in midst of negotiating a price, but it is likely that if not for
this outside interference they would have come to agreement. On the other
hand, if negotiations seem to have broken off or are at an impasse, it
would be permitted for someone else to step in and try to buy it for
- C. There is no prohibition of "Ani HaMehapech B'Charara" regarding any
sale that is being conducted via an auction.
- D. Most Halachic authorities are of opinion that the prohibition only
applies if the second buyer would be able to purchase a similar item or
home for a similar price and terms. If the item in question is being sold
for an especially low price or with exceptionally good terms that
probably would not be available again, it would be permitted for an
outsider to present his own bid and interfere with the ongoing
negotiations. However, even in this case, it is Midas Chassidus (pious
conduct) not to interfere, and to be concerned about the opinion of the
minority Halachic authorities that the prohibition does also apply in
However, if the second buyer is poor, and the first buyer is wealthy, and
the first buyer could purchase a similar item from someone else,
according to all opinions the second buyer is permitted to interfere in
the negotiations, and it is not even Midas Chassidus to refrain from
doing so. (3)
- E. The prohibition of Ani HaMehapech BeCharara is only for the second
person to approach the seller with his own offer, and to try to exclude
the first person from the sale.
However, if the seller made an offer to sell it to someone else while
negotiating with the first person, or advertised publicly that the home
or item is still available, even after he agreed to sell it to the first
customer but no Kinyan (formal acquisition) has occurred, the second
person is permitted to express an interest and offer a bid. Although our
Chachamim frown on someone who has verbally agreed to do something and
backs out for no good cause (Ain Ruach Chachamim Nochah Heimenu), this
does not prohibit the second buyer from expressing interest when he has
been approached by the seller. (4)
- F. Obviously, all of the above is only if there has been no Halachic
Kinyan between the seller and the first buyer. If there has been a
Kinyan, neither side may back out, and the sale is effective to the first
buyer alone. (5)
(1) The Gemara in Kiddushin 59a states that it is forbidden for anyone to
acquire an item that someone else has already entered an agreement to
purchase, even if there has been no Kinyan. One who does so is a Rasha,
and has transgressed a Rabbinic prohibition. This is true even if the
second buyer only became aware that there had been a previous agreement
on this item after he purchased it, as is clear from the story about Rav
Giddel mentioned there. This is stated as the Halacha in the Shulchan
Oruch, Choshen Mishpat 237:1, and in the Pischei Teshuva there (2).
(2) This is based on the opinion of the Perisha quoted in the Pischei
(3) This is the opinion of most Rishonim, and that of the Shulchan Oruch,
as explained by the Nesivos in Biurim (2), and the Rema there. Since it
is not available anywhere else for this price, in their opinion the above
mentioned reason is not applicable. However, Rashi and the Ramban (quoted
in the Shach there) both feel that the prohibition is even applicable
when it is not available elsewhere, and therefore it is proper to be
stringent and not to purchase it.
(4) The SM"A (386:10) and the Teshuvos Avnei Nezer (Choshen Mishpat 17)
state that there is no prohibition of Ani HaMehapech B'Charara regarding
the seller. Sine he is permitted to do whatever he wishes with his
property, he is permitted to seek out another buyer even after reaching
agreement with the first buyer.
However, the Gemara in Bava Metzia (49a) and the Shulchan Oruch (Choshen
Mishpat 204:7, and in the Rema there 11), state that anyone who does not
keep to his verbal commitments is not considered favorably in the eyes of
our Chachamim. Therefore, if the seller did make a verbal commitment he
must keep to it, although technically if he would back out and sell it to
the second customer, such a sale would be effective.
The Rema there quotes two opinions regarding a case where the second
buyer is offering a much higher price than has been agreed upon with the
first buyer. Some say that in this case there is no disfavor in the eyes
of the Chachamim to back out, and others say that even in this case the
seller is considered unfavorably if he backs out of his agreement.
Although the Rema agrees with the second opinion, the Biur HaGr"a there
(18) agrees with the first, and the custom is to allow the seller to back
out in this situation. However, it is definitely preferable to be
stringent according to the opinion of the Rema, especially in situations
where such a reversal will create Chillul Hashem.
It should be noted that this disagreement between the Rema and the Gr"a
also applies in the opposite case, where the buyer wishes to back out of
the agreement because he has found a similar item for sale at a lower
price. However, if the buyer has become aware that the agreed upon price
is 16% more than the going price in other stores in that area for this
item, all agree that the buyer may back out of the agreement.
Similarly, if the buyer and seller did not make a definite commitment,
but discussed the possibility of the sale and both seemed to be
agreeable, and one wanted some time to seek advice from family and
friends, either party may back out, and there is nothing unfavorable
about this. In this situation there would also be no prohibition of Ani
HaMehapech B'Charara for a second buyer to get involved, since the
prohibition is only if there has been agreement, or there are ongoing
negotiations that seem to be leading to agreement, as explained in The
Rema (237:1) and the Pischei Teshuva there (3).
(5) This is stated in the Rema (237) and in the Nesivos in Chiddushim (8).
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!
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