(2010/5771)

The Case

The Torah Academy of Bergen County’s varsity hockey team won the New York metropolitan hockey league championship in 2007 and 2008. The glove used by the goalie in these games remains within the hockey team as a coveted memento that is passed from one graduating class to the next. In March 2009, at one of the practices close to the end of the hockey season, one student (“glove caller”) “called” (reserved) the right to purchase the goalie glove from the graduating goalie (“goalie”) at the end of the season. Toward the end of the summer of 2009, when “goalie” was at summer camp in the Pocono Mountains, he offered to sell the goalie glove to another member of the TABC hockey team. This student reminded “goalie” that “glove caller” had already “called” the right to purchase the hockey glove. “Goalie” told him not to be concerned with the “call” and subsequently sold the glove to this student (“glove purchaser”) who was with him in camp.

In September 2009, when “glove caller” discovered that “goalie” had sold the coveted glove to “glove purchaser,” he objected to his “call” not being respected. The two students came to me to resolve the dispute. “Glove caller” claimed the right to purchase the glove from “glove purchaser,” and “glove purchaser” questioned that right.

We must resolve three issues in this case: Did “glove caller” become the owner of the glove when he “called” the glove? Did “goalie” act unethically by not honoring the “call”? Did “glove purchaser” act unethically by purchasing the glove when someone else had already called the glove?

Transfer of Ownership of the Glove – Kinyan

The Mishnah (Bava Metzia 4:2) sets forth the rules for when ownership is formally transferred during the sale of a movable item:

“If one had pulled the good towards him (Meshichah) but did not yet pay the money, [ownership of the good has been transferred – a Kinyan had been made] and neither side may renege on the deal. If he gave the money but did not yet perform Meshichah on the item [ownership of the good has not been transferred] and either side may go back on the agreement. However, [the sages] said that the One who punished (Mi ShePara) the Dor HaMabul (generation of the flood) and the generation of the dispersion (after building the tower of Bavel) will punish one who does not abide by his commitments.”

This Mishnah teaches that a Kinyan is made on movable items when one pulls the item towards him and that if one reneges on a deal after the money has been paid, he is considered to have acted unethically and receives a “Mi ShePara” punishment. “Glove caller” had neither taken possession of the glove nor given money to “goalie.” Thus, he is not considered to be the owner of the glove by virtue of the call, and “goalie” does not incur a “Mi ShePara.”

Kinyan Situmta – Common Commercial Practice

Although no Kinyan was made by traditional Halachic standards, we must still explore whether a Kinyan was made by virtue of the customary commercial practices of the time. The Gemara (Bava Metzia 74a) discusses a common practice of wine sellers who would place a seal (Situmta) on the barrels of wine that had been promised to a specific buyer. The Gemara records a debate regarding one who placed a seal on a barrel but then wants to sell it to another buyer. One opinion is that placing the seal actually effects a transfer of ownership and is the equivalent of Meshichah. The second opinion disagrees, arguing that selling to another after placing a seal on the barrel rises only to the level of a “Mi ShePara.” The Gemara concludes that placing a seal does not effect a Kinyan (but rises to the level of a Mi ShePara), but in a place where the commonly accepted practice is to regard the placing of the Situmta as the equivalent of Meshichah, title is transferred simply by placing the seal.

The conclusion of the Gemara is codified by the Shulchan Aruch (Choshen Mishpat 201:1). The Shulchan Aruch proceeds (ibid number 2) to articulate a principle of major importance:

“And so too any act which merchants commonly accept as an act which signifies formal transfer of title, such as giving of a coin of minimal value, shaking hands, handing the keys to the purchaser, or doing anything similar to this, is recognized by the Halachah as a legitimate Kinyan, even though these acts are not mentioned by the Mishnah or the Gemara as a valid means of effecting a Kinyan. “

Pitchei Teshuvah (ad. loc. number one) cites opinions (Teshuvot Chatam Sofer C.M. 12) that regard Kinyan Situmta to have validity on even a Torah level; therefore, it is commonly employed by community rabbis as one of the means of transferring title of Chameitz to a non-Jew before Pesach (Aruch HaShulchan, Orach Chaim 448:21 and 28). Teshuvot Devar Avraham (1:1) bolsters the opinion of the Chatam Sofer in a celebrated responsum. He argues that even Kinyan Sudar, a common Halachic act (such as at a wedding, Din Torah and sale of Chameitz) in which the beneficiary of an obligation hands the one who obligates himself a utensil of some value, even though it will be returned, as means to present symbolic consideration to consummate a deal, is an example of a Kinyan recognized by Halachah which emerged from common practice (as indicated in Rut 4:7 – “VeZot Lefanim BeYisrael”) and was not a Kinyan originally introduced by the Torah or Chazal.

Accordingly, we must investigate as to whether “calling” an item is an accepted practice among Modern Orthodox adolescents to transfer title of an item or, at least, to impose a Mi ShePara upon those who do not respect a call. Investigation revealed that no such Minhag exists and that, at most, a “call” signifies reserving the right to negotiate the purchase of the item. Proof of this conclusion is that if “glove caller” would have offered what “goalie” considered an unreasonably low price, “goalie” would have been under no legal or moral obligation to sell the glove to “glove caller.”

Mechusarei Amanah

Even though “goalie” is not guilty of theft and does not deserve a “Mi ShePara,” it is possible that Chazal would regard his actions as Mechusarei Amanah, lacking in good faith, by not honoring the “call.” Shulchan Aruch (C.M. 204:7) codifies the opinion of Rabi Yochanan (Bava Metzia 49a) that one should honor his verbal commitment, even though a Kinyan is not made and even if money is not yet exchanged. Although one who does not honor his verbal commitments does not receive a Mi ShePara, Chazal nonetheless disapprove of his behavior – “Ein Ruach Chachamim Nochah Heimenu,” “The spirit of the sages is not pleased with him.”

However, one may defend the actions of “goalie”. First, the Rama (C.M. 204:11) cites an opinion that permits one to deviate from a verbal commitment if a second offer is higher. If money is exchanged, then Chazal disapprove of withdrawing from a deal even if one receives a more attractive offer. However, this opinion (the Tur, C.M. 204, citing the Ba’al HaMa’or) permits retracting one’s verbal commitment in case of loss if no money has been exchanged yet.

Although Rama concludes that this opinion should not be followed, the Shach (ad. loc. number five) and Netivot (ad. loc. number ten) cite the Bach, who is uncertain about this matter. Aruch HaShulchan (C.M. 204:8) concludes that baseline Halachah permits retraction in case of loss, although it is considered to be pious behavior to refrain from retracting even in case of loss. In our case, “glove purchaser” was a more attractive buyer to “goalie,” since they were together in camp, while “glove caller” was not. Moreover, “goalie” lived in Staten Island and soon after the end of camp would be leaving for a year of Torah learning in Eretz Yisrael, while “glove caller” lived in Teaneck and was thus a far less convenient purchaser (the sale was made at the end of the camp season when “goalie” no longer needed the glove). Moreover, by honoring the call, “goalie” would be compromising his leverage in negotiations by passing over a willing buyer and expecting that “glove caller” would offer a satisfactory price for the glove. Thus, baseline Halachah certainly permits “goalie” not to honor the call in order to seize the opportunity to sell the glove at a reasonable price, since “glove purchaser” is a more attractive buyer than “glove caller.”

Furthermore, Teshuvot Sheivet HaLeivi (4:206), which is cited approvingly by Pitchei Choshen (7:1:3 footnote 6), suggests that if there is a highly significant difference between the offers of the original and second potential buyers, then even the Rama would agree that one may retract his verbal pledge. In our case, it is fair to say that considering the circumstances, “glove purchaser” was a far more attractive buyer than “glove caller,” and thus “goalie’s” behavior need not be deemed impious.

Interestingly, Pitchei Choshen (7:1:3) rules that if the deal has not been concluded, then there is no obligation to honor one’s word, since a true commitment has yet to be completed. Accordingly, it is clear that “goalie’s” actions are not considered Mechusarei Amanah. However, regarding this point, common practice among Modern Orthodox adolescents becomes relevant. Disregarding a “call” to the extent that one does not even enter negotiations with the one who made the call is considered by youngsters to be “Mechusar Amanah,” even though no agreement has been reached on a purchase price, since the seller deviates from common practice.

Nonetheless, we can defend “goalie’s” behavior. The practice of honoring a call does not apply when there is such a great disparity between the two potential buyers. Moreover, the tradition at TABC is for the graduating goalie that possesses the championship goalie glove to sell the glove to the goalie of the incoming twelfth grade. “Glove purchaser” was an incoming twelfth grader, while “glove caller” was an incoming eleventh grader. Thus, “goalie” was entitled to disregard a “call” that was inconsistent with previously established practice. Indeed, “goalie” had not made a commitment to honor the “call,” as he merely remained silent when the call was made. Thus, he made no verbal commitment to allow “glove caller” to have the right to be the first to enter into negotiations to purchase the glove. The absence of consent was due to the deviation from established hockey team protocol.

We have concluded dealing with two of the questions we raised before. “Glove caller” did not acquire title to the glove by making the “call,” and “goalie” did not act unethically by not honoring the call. Next week, we shall conclude this topic with a discussion about whether “glove purchaser” violated the rules of Ani HaMehapeich BeChararah by intruding on another’s efforts to acquire the item.