1)    Mi Shepara – Ability to retract but liable to receive curse of Mi Shepara:[1]

In certain scenarios, although one may still legally retract from going through with the agreed transaction if a valid legal acquisition has yet to take place, nonetheless, one who does so is liable to receive the curse of Mi Shepara.[2] It goes without saying that such an individual is considered a dishonest person [i.e. Michisurei Emuna], and the Sages were not happy with such an individual, as it is proper for a person to keep to his word, as explained in Case 4. [However, being liable for Mi Shepara is more severe than simply being called Michsurei Emuna, as the Sages are not merely displeased with him, but actually curse him. Furtehrmore, in the scenario that one is liable for Mi Shepara, it is forbidden for one to go back on the sale and make himself liable for Mi Shepara[3], unlike in a scenario of mere Michsurei Emuna in which this matter is under debate, as will be explained.]

Case example – Paid for product but no Kinyan: Although according to Biblical law paying for a product is considered a legal acquisition, nevertheless, the sages abolished this method of acquisition with exception to certain cases, and hence according to Rabbinical law, paying for a product does not necessarily suffice for legally acquiring the item and finalizing a business transaction.[4] Accordingly, both the buyer and the seller retains the legal ability to retract from the transaction, following the letter of the law, so long as no legal acquisition was made, in addition to the payment.[5] Nonetheless, once the buyer pays[6] for the item even partially, anyone who backs out from the sale, whether the buyer or the seller, is eligible to receive the curse of Mi Shepara.[7] This applies even if the market value of the product has changed.[8] [There do exist however certain cases of exception in which one who retracts is not liable for Mi Shepara.[9]]

Other cases:[10] Other cases likewise exist in which the side who retracts from the business agreement is liable to receive Mi Shepara, even if no money was exchanged, such as if a Kinyan Situmta was done in a locality where such a Kinyan is not practiced in commerce.

Mekach Taus – Defects and wrong charge:[11] In the event of a Halachically defined Mekach Taus, it is permitted for the party who was wronged to retract from the sale, and he is not liable for Mi Shepara, as explained above in Case 1 that this applies even if a valid Kinyan has taken place.

The law if there exists a refund policy:[12] The above liability for Mi Shepara on retracting from a sale only applies in an area that does not contain any consumer laws regarding the issue of returns. If, however, the State in which the purchase took place, contains consumer laws and policies which are accepted upon that area, then the laws of returning a product follow all those laws and regulations for all purposes. The same applies if the store policy is to permit returns until a certain time, in which case there is no Mi Shepara for retracting from the sale.

Gentile:[13] It is disputed amongst the Poskim whether a Jew is liable for the curse of Mi Shepara in the event that he retracts from a transaction that he did with a Gentile, if he has yet to perform a valid acquisition.[14]

_____________________________________________

[1] See Admur C.M. Dinei Mechira Umatana Halacha 1; Michaber C.M. 198:15 and 204:1-6; Encyclopedia Talmudit Erech “Mi Shepara” Vol. 46 p. 81-152; See Imrei Yaakov on Admur ibid 1:1 Shaar Hatziyon 1-18

[2] Who gives the curse: The Beis Din. [Michaber C.M. 204:4] See Encyclopedia Talmudit ibid Os Beit p. 96 footnotes 136-140

Where to give the curse: See Encyclopedia Talmudit ibid Os Beit p. 97 footnotes 141-144

The wording of the curse: See Michaber and Rama C.M. 204:4; Rambam Mechira 7:2; Mishneh Bava Metzia 44a; See Encyclopedia Talmudit ibid Os Beit pp. 92-97

Pesul for Eidus: See Encyclopedia Talmudit ibid pp. 91-92 footnotes 82-94 for a dispute in this matter

[3] See Encyclopedia Talmudit ibid p. 87 footnote 46 in length that so rule most Poskim, although some Poskim rule that even in a case of Mi Shepara, there is no prohibition involved.

[4] See Michaber C.M. 198:1 “Devar Torah Maos Konos” and 198:5 for the reason of this Takanas Chachamim; Rambam Mechira 3:5; Rebbe Yochanon Bava Metzia 47b; See Imrei Yaakov on Admur ibid 1:1

Cases of exception that Maos Konos even Rabbinically: See Michaber C.M. 198:5-6 regarding Sechirus, product in home of buyer or in area safe from fires, and if the two parties agree for it to be Koneh; See also 199:1-4 for further cases of exception; See Encyclopedia Talmudit ibid Os Beit pp. 98-117; Imrei Yaakov on Admur ibid Likkutim 1:1 Mekoros 4-7

[5] Michaber C.M. 198:15

[6] The status of a check: See Imrei Yaakov on Admur ibid Likkutim 1:2 Mekoros 12 if it is considered like cash or like a document

[7] Admur C.M. Dinei Mechira Umatana Halacha 1; Michaber C.M. 204:1; 198:15; Rama 204:11; Mishneh Bava Metzia 44a; Bava Metzia 48a; Rashi and Nimukei Yosef on Bava Metzia 49a in story of Rav Kahana and the ruling of Rav; See Encyclopedia Talmudit ibid p. 83 footnotes 20-22

Opinion of Rav: Rav holds that paying part of the sum of the product does not make one liable for Mi Shepara if the excess amount of the product that was not yet paid for, is asked to be canceled. [See Bava Metzia 49a and Rashi there that Rav holds “Kinegdo Hu Kneh”]

[8] See Tur C.M. 199; Aruch Hashulchan 204:8; Encyclopedia Talmudit ibid p. 137 footnotes 499-503

[9] See Encyclopedia Talmudit ibid Os Beit pp. 98-137

[10] See Michaber C.M. 201:1 and 204:6 regarding Rosheim Al Hamekach; Smeh C.M. 204:11; Bava Metzia 74a; See Encyclopedia Talmudit ibid p. 83 footnotes 13-19 and pp. 98-117; See Imrei Yaakov on Admur ibid Likkutim 1:1 Mekoros 8-11 

[11] See Encyclopedia Talmudit ibid p. 121 footnotes 354-356

[12] See Encyclopedia Talmudit ibid p. 115 footnotes 293-295 regarding that there is no Mi Shepara if the Mekach will not take place until 30 days later; A refund policy in essence makes the purchase of the product defined as “Halokeiach Keli Al Means Levakro” by which we rule that one may return it without penalty of any level of mistrust. See Michaber C.M. 200:11; Smeh 200:29; Tur 200; Nedarim 31a”; Bava Basra 88a; Alon Hamishpat Vol. 95

[13] See Shoel Umeishiv Tinyana 4:110; Imrei Yosher 2:137-3; Encyclopedia Talmudit ibid p. 136 footnotes 488-494

[14] See Case 1 in footnotes for a dispute regarding if Kinyan Kesef is considered a Biblically valid acquisition for a gentile. The practical ramification would be if one would be liable for Mi Shepara according to the stringent opinion here. However, perhaps he would be liable regardless due to Kinyan Situmta. Vetzaruch Iyun.