Following heated debates in Crown Heights over a recently minted coin, we bring you a halachic exploration of the topic from the Ami Magazine.
The beis din column appears weekly in the Ami Magazine.
Question:
Not long ago, the US Mint announced that it would be accepting orders on a limited version of the 2019 American Eagle, a silver dollar that is highly desirable to collectors, for under $70. Since the production was very limited—only 30,000 coins—this was considered an excellent opportunity. American Eagles this rare have easily fetched $250 or more on the collectors’ market. To ensure that the opportunity to obtain these coins would be widely available, orders were limited by the Mint to one per household.
One adventurous company owned by Bernard Schachter offered a quick cash opportunity to individuals in the days leading up to November 14, the opening day for orders. The ads promised $250, which amounts to some $180 profit for each coin bought and sold to them. I decided to take advantage of this opportunity, so I requested their application form. The form was short and basically asked my past history with the company and how many coins I expected to obtain. I was also asked to confirm that “by signing up for this deal [I] understand that [I am] committing to sell [the company my] coin whether or not the value goes up or down after the release.”
Ultimately, the demand for this coin was overwhelming, and with everyone falling over each other to get their hands on these coins, the massive traffic crashed the Mint’s website. The coin was sold out within minutes of the noon-time opening. Collectors and investors are now offering $1,400 for the coin.
I just received my coin. My question is, may I sell it for the highest offer or am I obligated to sell to the first company for $250?
–Edward Weber
The Bais Din Responds:
In order for this deal to be valid and binding according to halachah, we must consider three essential points: 1. Was there a kinyan—an act of acquisition? 2. Since the application forms were filled out before the coins were in the possession of the sellers, there may be an issue of acquiring a davar shelo ba la’olam—an item that is not yet in the world—which generally cannot be done. 3. Was there a hischayvus or shiebud—a personal obligation of any sort—to sell the coins?
An Act of Acquisition, Non-Existent Merchandise and Situmta
According to halachah, a kinyan must be performed in order for something to change possession. The Shulchan Aruch (Choshen Mishpat 189) states that as long as no kinyan was made, the exchange, transaction or agreement is not final and either side can back out. A deed is a halachically valid kinyan, known as kinyan shtar, but it is only effective in the acquisition of real property (karka); chattel or movable property (metaltelin) cannot be acquired via a shtar.
However, a document that—when executed—is accepted as binding according to law or in the general market would be considered a proper kinyan. This is referred to as a situmta. In the times of the Gemara, wine sellers would mark the barrels to show that they were sold (similar to marking furniture or antique items as “sold”), which constituted a kinyan as a result of the custom, even though it didn’t meet the general guidelines of a halachic kinyan.
If we were to treat the application form as a market-accepted kinyan, it would also solve the problem of acquiring a davar shelo ba la’olam. Although the coins weren’t minted yet (or at the very least not yet in his possession), the consensus of many poskim is that while one cannot acquire non-existent items using the usual halachic kinyanim, one can use a situmta (where it is bolstered by the dina d’malchusa—the law of the land) in such instances. This is the opinion of the Chasam Sofer in the name of the Maharshal (cited in Pischei Teshuva siman 201), as well as that of the Aruch Hashulchan.
Still, it is entirely unclear whether this document would have any legal standing or acceptance as binding in the general market, because it is not signed and seems to serve only as a memorandum of sorts. Additionally, an item that is not yet in existence or is not in the possession of the seller (futures) can only be acquired if there is monetary consideration, and a document alone will not suffice.
Shiebud to Sell
Although we established that under normal circumstances one cannot sell an item that is not yet in existence, one can obligate himself to sell it (Choshen Mishpat 60:6). In other words, although there is no kinyan on the coin itself, one can bind himself to sell it when it does come into existence (or his possession). However, this obligation must also be effectuated through a kinyan [There is a dissenting view on this point; see Shach 60:26]. In this case, the only thing that might amount to a kinyan is the application form as a situmta. But as we established earlier, this form cannot be considered a situmta and would not work here.
Mechusar Amanah
Another possible problem with backing out of the deal could be a concept in halachah called mechusar amanah—lack of good faith. It is wrong to go back on one’s word in certain cases of minor commitment, even if there was no final kinyan. The Gemara (Bava Metzia 49a) says that a person who tells his friend that he will buy or sell something may not retract his word. Although the transaction was not finalized because no kinyan was performed, nevertheless, it is a lack of good faith to renege on the commitment.
In our case it would seem that taking back the commitment to sell the coin should at the very least be considered a breach of word and render the person a mechusar amanah.
However, the poskim argue whether mechusar amanah applies to something for which no kinyan is effective. In this situation, since the coins were not yet minted and cannot be acquired via a halachic kinyan, it would be subject to debate whether mechusar amanah would apply.
L’halachah, it seems that the poskim apply mechusar amanah even in a case where a kinyan would not be possible. This can inferred from the Beis Yosef (Yoreh Dei’ah 264), who says that a person who asks a specific mohel to perform his son’s bris and reneges is a mechusar amanah. Although according to halachah a mohel cannot charge for his services (other than for loss of income) and contracting him to perform the bris is considered just a kibbud, which is not subject to kinyanim, nonetheless, the rules of mechusar amanah apply. And that appears to be the minhag.
Trei Tarei — Price Fluctuation
There may still be a reason to be lenient. The Rema (Yoreh Dei’ah 204:11) cites two opinions regarding mechusar amanah in a case of trei tarei—two prices. Just like in this case, if someone gave their word and then the price changed, there are those who maintain that he can back out. Although the Mechaber and the Rema seem to conclude that even in such a case one must stand by his word, the Vilna Gaon is lenient, as are many of the later poskim [the Aruch Hashulchan writes that it still is a middas chasidus—a pious measure—not to change one’s mind].
It can be argued that this case is different, because the application form clearly spelled out that the agreement is binding even in the event that the price rises. Still, some dayanim maintain that since the price change was so dramatic and unanticipated, it would not have been covered by the document.
Shlichus
One last point is that perhaps the buyers are considered shluchim for buying it for the company, in which case it would belong to the company immediately upon purchase because of the laws of shlichus. However, it is difficult to say that, because the “meshalchim” don’t have the ability to purchase it themselves due to the limit of one per household, and they therefore wouldn’t have the ability to appoint a shaliach to buy it. Additionally, the language in the form is quite clear that the intention is to buy it from them and not to appoint a shaliach who will purchase it for them. There are additional reasons why shlichus would not apply here, but they are beyond the scope of this article.
In Summary
Based on all of the above, it would seem that you would be permitted to back out of your commitment. However, I will point out that some dayanim are not convinced that this would qualify as trei tarei because that possibility was explicitly mentioned in the application form. The bottom line is that it would seem that you are considered a muchzak (in possession), and it would therefore be difficult for anyone to insist on you honoring your commitment.
Nonetheless, as we explained earlier, mechusar amanah might still apply here—as we demonstrated that it works even when a kinyan is not possible. From that perspective it does not seem to be a monetary question, and being a muchzak would not seem to be a factor. It would seem to be dependent on the status of mechusar amanah—d’Oraisa, divrei kabbalah, d’rabbanan or just a hanhagah tovah—as there are opinions for each one. I therefore recommend that you ask your personal rav for a final psak. ●
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