Sunday, December 09, 2007

Kesubos 99b - O'na'ah by Land

The gemara says a rule that there is no o'na'ah by land - meaning that even if the buyer or seller is ripped off by more than a sixth, the sale is binding. Tosafos (98a d.h. almana) quotes from yerushalmi that this applies so long as there is not a 100% discrepancy from the fair market value, but if there is a 100% discrepancy (buyer pays 1k for $500 land, or seller gives 1k land for only $500) the sale is null and void. The gemara says on 99b that part of the power of a beis din is that even when there is a 100% discrepancy, the sale is binding, which implies that in the absence of a beis din it would not be binding (but that may only refer to a case when it is not sold by the owner).
However, the gemara says that when an agent of the seller sells the property, even if there is any small discrepancy from the fair market value the sale is void, because the owner can claim to the agent "i sent you to benefit me not to harm me" (shulchan aruch c.m. 227:30 cites 2 opinions whether the sale is nullified even if the buyer was ripped off, even though the logic should only apply to when the seller is ripped off). Regarding the issur of o'na'ah as applied to land, R' Akiva Eiger quotes a machlokes between Tosafos in baba metziah and Ramban, whether lands (and shtaros and avadim) are excluded from the bitul mekach of o'na'ah but there is still an issur (Ramban) or are they excluded even from the issur of o'na'ah (Tosafos). According to Ramban that there is an issur of o'na'ah even by property, who is in violation of the o'na'ah when an agent sells the property? It seems fairly obvious that regarding the issur we would say ein sheliach l'dvar aveira, and the issur would be on the agent, not on the owner.

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