Question:

Does a neighbor who retains the halachic status of a Bar Metzra continue to retain his legal right of buying the property in the event of an initial decline of the offer to purchase it at the requested price of the seller, if he is willing and ready to pay a lower price. This question breaks down to two parts:

1. In the event that the owner finds someone who is willing to pay the same amount that was already offered by the Bar Metzra, must he return to the Bar Metzra to offer him the purchase, or does his initial declination of purchase nullify his rights of purchase?
2. In the event that the owner finds someone who is willing to pay more than the amount which was offered by the Bar Metzra, must he go back to the Bar Metzra and offer him to purchase the property at the matched price, or is he free to sell it to the other buyer due to the initial declination of the Bar Metzra?[1]

Answer:

So long as you the Bar Metzra* have not declined to purchase the property at an offered price with a current viable buyer who is willing to pay that price, then you have not waived your right as a Bar Metzra. If, however, you do decline to purchase it for the offered price after being told that there is a viable buyer who is willing to pay that price, then you have waived your right and they can go ahead and sell it to the other buyer. However, even in such a case, you do still retain the ability to reclaim your Bar Metzra rights through notifying the seller and/or buyer prior to the sale that you have changed your mind and are willing to pay the price asked. However, once the sale has taken place at the price which was initially offered and declined, prior to your retraction, then you may no longer demand the property. As to the question of whether the seller must present to you an actual buyer, or it simply suffices for him to tell you that there is a buyer, this matter is disputed amongst the Poskim, and hence being that the burden of proof is on the Bar Metzra, therefore if you decline to buy the property for the offered price after simply being told that there is another buyer, you take the risk of forfeiting your right. In the event of a claim that you do not believe that there is actually any other buyer, then the burden of proof would be on you, and lack of proving this would once again risk forfeiting your right.

*The laws of Bar Metzra are extremely complex and retaining the right of a Bar Metzra is dependent on a number of factors that not always does the Bar Metzra take into account, including, the purpose for which he is buying the property, the identity of the other potential buyer, etc. etc. Hence, the above conclusion is taken for granted that indeed the Bar Metzra would have his rights under all these grounds as well.

Explanation:

The general law of Bar Metzra: The law of Bar Metzra is a law which states that when a person sells a property, the neighbors of that property receive precedence of purchase over anyone else. Even in the event that the owner went ahead and sold it to someone else, the Bar Metrza neighbor has the legal right to reimburse the new owner with the money of the sale and take the property for himself. [In essence, and for all intents and purposes, we view the buyer as if he is the agent of the Bar Metzra, and hence when he purchases it, it is viewed as if he purchased it on behalf of the Bar Metzra, and all the Bar Metzra has to do is reimburse him for his expenses.]

Its reason: The reason for this law is due to basic civility and rights of living, in which it is more proper to give a person who is a current resident the opportunity to expand his residence, than to give it to another outside person who has a residence elsewhere. The outside person has nothing to lose by buying a property elsewhere, while the neighbor will need to move from his current environment, or split location of his properties, if he is required to buy elsewhere. This law is learned from the verse which states, “Veasisa Hayashar Vehatov Beiyneiy Hashem/and thou shall do the proper and the just in the eyes of God.”

Bar Metzra law by a house: Although there is a dispute in the Rishonim if this law applies only to the sale of a field or even to a home, practically we rule that it applies also to the sale of a home.

Cases in which a Bar Metzra does not retain rights: The rights of a Bar Metzra contains several caveats to its application, and hence there exist several scenarios in which the laws of precedence do not apply. A neighbor retaining a Bar Metzra right of purchase depends on several factors including: 1) The gender or identity of the other potential buyer [i.e. male or female, single or married, orphan versus adult]. 2) The purpose for which the Bar Metzra desires to purchase the property, versus the purpose of the potential buyer. [Investment versus living in home] 3) A case in which selling to the Bar Metzra will incur a financial loss for the owner. This scenario will be elaborated next, and is the core discussion regarding the above question. 4) Under what basis does he consider himself a Bar Metzra? Is he the owner of the adjacent property or the tenant, and how close in approximation is his property to the desired property of purchase. 5) Has the Bar Metzra ever made a statement or done an action which waves his rights?

In event of loss for owner: One of the exceptions to the rights of a Bar Metzra is in a case that selling the property to the Bar Metzra will cause the seller a financial loss. The owner has no obligation to sell the property to the Bar Metzra at a loss, and hence in a case of financial loss, the Sages automatically revoke the rights of the Bar Metzra to demand precedence to purchase the property. Accordingly, if the Bar Metzra neighbor does not have money to pay for the property at this moment, then it is permitted for another person to purchase it and there is no obligation for the owner to wait. Certainly, this applies if the owner is unsure if, or when, the neighbor will ever come up with the money to purchase it. Certainly, this applies if the neighbor is offering less money than the other potential buyer. This applies even if the owner is asking much more than the market value of the property, nonetheless, he has no obligation to sell it to the Bar Metzra for market value and may sell it to another buyer who is willing to pay more than the market.

In the event of refusal by Bar Metzra to buy at current price: Based on the above, it is clear that the owner has no obligation to sell the property to the Bar Metzra for a lower price than that which he is asking for, and in such a case [of refusal by the Bar Metzra to pay the current asking price], he may begin negotiations with other potential buyers. However, the question is raised as to whether in such a case the seller has the obligation to once again offer the Bar Metzra the property for the value that a new buyer is willing to pay for it, if the Bar Metzra initially refused to buy it for the price requested? Is the initial refusal considered a wave of rights forever, or is it simply a bargaining tool which the Bar Metzra retains the rights to use against the seller to prevent him from raising the price, and in no way does it forfeit his right to purchase the property for a higher price in the event that another buyer is willing to match it? So, it is clear from the Poskim that simply declining to purchase the property at the asking price does not forfeit the rights of a Bar Metzra, in the event that it is clear that he desires to purchase it, and is simply declining the offer to bargain down the seller. Accordingly, in the event that the seller finds a buyer for a higher price, he must first offer the Bar Metzra to match the price prior to going through with the sale to the other buyer, and if the Bar Metzra agrees to match the price then he is to sell the property to the Bar Metzra. Now, what is the rule if the Bar Metzra declined the purchase at the higher price because he did not feel that the seller had a serious buyer willing to pay that price, and in truth he did. Is there any obligation upon the seller to prove to the Bar Metzra that he has a serious potential buyer who is willing to pay the higher price? If yes, does the Bar Metzra immediately forfeit his rights if he declines it as soon as he is shown this proof, or do we say that he still retains his rights up until or even past the time of the sale, as until the sale is actually done, there’s always a chance that the other buyer will back out, and hence perhaps the Bar Metzra has the right to decline paying the asking price as part of his rights of negotiating down the price? We will tackle this second question first.

At what stage does a refusal to purchase the property forfeit the rights: It is clear from the Poskim that the moment that the Bar Metzra is presented with a potential deal with another buyer together with a price tag, then if he declines the purchase, then he forfeits his rights, and the owner may sell it to another buyer and he would have no claims against neither the owner or buyer. This applies even if he refuses to purchase it for that price in hope that the seller will lower the price if the deal does not go through with the other buyer. [However, interestingly, if the seller does not present to the Bar Metzra a price for the property, and simply tells him that he has another buyer, then his declination does not necessarily forfeit his rights, as we argue that he declined as a bargaining tool to prevent the seller from raising the price on him. In such a case, it all depends on the exact wording he used when he declined the purchase. However, if the seller does not mention the existence of a viable buyer, then he has not forfeited his rights, as stated above.] Now, while there are Poskim who rule that even after an initial refusal, certain rights are still retained by the Bar Metzra, nonetheless, even in their opinion this right that is retained is not a right for the Bar Metzra to demand purchase of the property, but rather the right of the seller to choose to sell it to the Bar Metzra even after the initial agreement with another potential buyer, and potentially even after the sale itself. This is aside for the fact that many Poskim disagree with the above ruling, and rule that once he declines to purchase it by matching the price of the other potential buyer, then he loses all of his rights against the buyer.

Reinstating one’s rights through revoking one’s declination to purchase: However, despite all the above, all hope is not lost for the Bar Metzra even after an initial declination of purchase, as some Poskim rule that the Bar Metzra has the right to revoke his declination and re-demand purchase of the property until the sale is actually finalized with the new buyer and enters his property. However, until that point, the Bar Metzra retains his right to change his mind and request the property.

Must seller present proof to Bar Metzra of potential buyer: Regarding this question, there are indeed some Poskim who rule that the seller must present the potential buyers to the Bar Metzra, and only then does a declination by the Bar Metzra to purchase the property at that price forfeit his rights. However, many other Poskim are of the position that it suffices for the seller to simply inform the Bar Metzra that he has locked in a potential buyer, and present him with the details of the purchase deal, and if the Bar Metzra declines irrelevant of reason, then he loses his rights forever. In the event that the Bar Metzra cries foul on the part of the seller, and claims that the seller is misrepresenting the fact that he has a potential buyer simply in order to force the Bar Metzra to pay his asking price, then the burden of proof for this claim is on the Bar Metzra, and if he cannot prove it then he has forfeited his rights.

Sources: See regarding the general laws of a Bar Metzra: Michaber C.M. 175:6; Rambam Shecheinim 12:5; Bava Metzia 108a; Devarim 6:18; Encyclopedia Talmudit Vol. 4 Erech Bar Metzra; Nesiv Hamatzranus; Pischeiy Choshen Shutfim Umatzranus chapter 11; See regarding that the law of Bar Metzra applies also by homes and not just by fields: Michaber and Rama 175:53; See regarding that the owner does not have to sell it to the neighbor if the neighbor does not currently have the money to make the purchase or if the owner will have any loss in selling to the neighbor: Michaber C.M. 175:25, 8; Michaber 175:23 “Batel Zechus Hamatzran” and Rama 175:23 “Vehu Hadin Bechal Davar Sheyeish Pseida Lamocher”; Rambam Shecheinim 14:1; Bava Metzia 108b; Aruch Hashulchan 175:11 See regarding the need for the neighbor to offer the same price as requested by the owner and as an outside buyer is willing to pay: Michaber C.M. 175:7 and 9; Michaber and Rama 175:23; See regarding the law if the Bar Metzra initially declines buying the property at the asked price and as to whether he still retains his rights: Michaber C.M. 175:29-31; Tur 175:47 in name of Rameh; Smeh 175:50 and 56 [who implies that the forfeiting of rights of the Bar Metzra due to a decline to purchase the property, only applies if there is a viable buyer waiting to purchase it]; Pischeiy Teshuvah 175:11 in name of Chemdas Shlomo C.M. 8 that he still retains his rights via the seller; Erech Shaiy who argues that he forfeits all his rights; Ginas Veradim C.M. 6:7 and Pamonei Zahav 175:31 that a declination loses rights only if the seller tells him a price and says [or shows-Ginas Veradim ibid] that he has a buyer for that price; Kesef Kedoshim; Nesiv Hamatzranus 5:27-31 footnotes 36-37 See regarding the right of the Bar Metzra to nullify his previous declination and regain his rights to purchase the property so long as the sale has yet to take place: Implication of Michaber and Smeh ibid who writes “Limkor Lo Beosam Damim”; Erech Hashulchan 175:18; Avkas Rochel 123; Ginas Veradim C.M. 6:6; Kneses Hagedola 175:37; Ranach 125; Mishkanos Haroim Mareches Mem 142; Pamonei Zahav  in name of Zechor Leavraham in name of Ginas Veradim; Mishpat Shalom C.M. 175:13;; Nesiv Hamatzranus 5:28 footnotes 34-35; Pischeiy Choshen Shutfim Umatzranus 174:13; Encyclopedia Talmudit ibid p. 191 See regarding that the burden of proof is on the Bar Metzra: Michaber C.M. 175:8 and 44-45; Rambam 12:12; Encyclopedia Talmudit ibid footnote 322

[1] On the one hand, if we rule like the former that the Bar Metzra still retains his rights after a decline to purchase at the offered price, then this creates a situation in which a seller misleads potential buyers into thinking that the property is available for them to purchase, when in truth the Bar Metzra still retains his rights, and perhaps the Bar Metzra is truly ready to pay any price for the property, and is simply trying to bargain the price down, on expense of engaging a new potential buyers, and wasting their time, money, and mental and emotional energy. On the other hand, if we rule like the latter approach, then any owner can circumvent selling to the Bar Metzra by simply overpricing the value of the property and forcing the Bar Metzra to decline payment and then selling it to anyone of his desire for whatever price.