מעות קונות או משיכה קונה

Kiddushin 28b

You go online to DiamondsAreForever.Com and purchase the diamond ring of your heart’s desire. You pay with your credit card. Your card is debited but the ring never arrives. There was a fire in the DiamondsAreForever.Com warehouse and your ring was destroyed. Can you get your money back?

The answer to this question in Halacha depends upon who is the legal owner of the ring at the time of the fire in the warehouse. If you, the buyer, are deemed to be the owner at that time, then it is your loss. If, however, DiamondsAreForever.Com, the seller, is deemed the owner, then it is the seller’s loss.

This of course leads to another question. At what point does the ownership of a purchased article transfer from seller to buyer? According to Torah law, מעות קונות, ma’ot konot, ownership passes to the buyer at the time buyer pays seller for the purchased item.

The rabbis, however, legislated that, משיכה קונה, meshichah konah, which means that the transfer of ownership occurs at the point of time when the purchaser takes physical possession of the purchased item. The situation described above is the very reason for this rabbinic legislation.

The rabbis were concerned that if ownership passes with payment, then in the event of a fire at the seller’s premises, the seller would have no interest in saving the purchased article from destruction. Why should he? The article no longer belongs to the seller and under Torah law the loss is for the buyer. In order to discourage this attitude and motivate the seller to salvage the property, the rabbis legislated that ownership passes when the buyer takes physical possession of the purchased property.

Does this lead us immediately to the conclusion that in the above situation you get your money back?

It depends on how one understands this rabbinic legislation. Are the rabbis saying that without the buyer taking physical possession of the purchased article, ownership does not pass from seller to buyer and there is no sale at all? Or do they mean that ownership does in fact pass to the buyer and that there is a completed sale, but that until the buyer takes physical possession of the item, both seller and buyer can renege on the transaction and rescind the sale?

If the first interpretation is correct, it follows that you get your money back because the item that was destroyed was not yours and the seller who cannot deliver the diamond ring must now return your money. This is the opinion of the Rambam, the Shulchan Aruch and the Rif.

If the second interpretation is correct, then unless the buyer or the seller rescinded the transaction before the fire, the ownership of the article remains with the buyer and you are not entitled to your money back. This is the opinion of The Baal Hama’or, the Ramban and, according to some, it is also the opinion of Rashi.

If the purpose of this rabbinic legislation is to motivate the seller to salvage the property for the benefit of the buyer, how is this achieved according to the second opinion quoted above? What incentive does the seller have to salvage the object from fire if at the end of the day, the loss is for the buyer? The answer is that the seller does have an incentive to do so. The incentive lies in the very right of the seller to back out of the transaction prior to the buyer taking possession.

Let us assume, by way of illustration, that the price of diamonds on the diamond exchange rises after the buyer pays for the diamond but before the buyer takes possession. The seller now has the right under this rabbinic legislation, to renege on the sale and sell the diamond to someone else at a higher price. It is this right of rescission that gives the seller an economic interest in the property and which motivates him to salvage the article from the fire.

In view of the fact that the halacha generally follows the opinion of the Shulchan Aruch, you would be entitled to your money back.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].