Translation:Shulchan Aruch/Choshen Mishpat/205

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Paragraph 1- If one was pressured until he sold and accepted the money for the item, even if they hung him until he sold, the sale is valid, regardless of whether it was movable items or real property, because the duress made him completely transfer ownership, even if he did not take the money in the presence of witnesses. There are those who disagree and hold that witnesses must have seen the giving of the money, and the confession of the seller alone would not suffice. There are those who say that it must be where the buyer gave the seller money, but if he gave him a document on the item he would not acquire it. There are those who disagree. Therefore, if the seller gave a declaration before he sold and told witnesses, “know that I am selling such and such item or such and such field to so and so because I am under duress,” the sale would be void. Even if the buyer had possession on the property for many years, we would remove it from him and return the money. The witnesses must know that he is selling it under duress and that is a certain duress and they are not just relying on the seller’s say-so. Any declaration that does not state, “we the witnesses know that this so and so is under duress,” is not a valid declaration.

Paragraph 2- When is this true? With respect to a sale. With respect to a gift or waiver, however, the witnesses do not have to recognize the source of the duress.

Paragraph 3- A settlement has the status of a sale and a waiver has the status of a gift. A gift that has a guarantee written has the status of a sale.

Paragraph 4- There are those who say that this that we say that where the seller does not give a declaration the sale is valid applies to real property even where the buyer did not give its entire worth because there is no law of overcharging on real property. With respect to movable items, however, because it has the rules of overcharging or the voiding of the sale, there would not be a sale. This is only true where the buyer compelled him on the sale but not on the amount of money. If he forced him to give less than the item’s worth, however, there would be no sale and it is as if he forced the seller to give him a gift, even in the case of real property. Such a case does, however, have the status of a sale with respect to the fact that if the seller gave a declaration, the witnesses must know the source of the duress, just like the rule in the case of a sale.

Paragraph 5- There are those who say that even where the seller says to write for him that he gave a declaration in front of witnesses and when they discover the source of the duress from witnesses their testimonies can combine to void the sale, we would not listen to him. If the declaration was already written and he later brings proof that he was under duress, however, the sale would be void.

Paragraph 6- When is it true that the witnesses must know of the duress? In the case of a sale or where the parties reach a settlement. With respect to a gift or waiver, however, if the transferor gave a declaration prior to transfer, even if he was not undress duress, the gift would be void because when it comes to a gift we follow the intent of the giver, in that if he does not intend to transfer with all is heart the recipient will not acquire the item, and a waiver has the status of a gift.

Paragraph 7- Regardless of whether one compels another by hitting him or hanging him until he sells or intimidates him with something that he has the ability to do, regardless of whether it was compulsion by force or money, although there are those who disagree and hold that if the buyer intimidates the seller it is meaningless because people often exaggerate and don’t follow through, whether via gentile or Jew, it would qualify as duress. An incident occurred where an individual rented a garden from another for 10 years but the owner did not have a debt document in his possession and once the three years had completed the renter told the owner that if you don’t sell the garden to me I will hide the rental document and claim I purchased it, and the Rabbis said this case qualifies as duress. The same applies to anything similar. Thus, if the owner would make a claim on the renter in court and the renter denies and claims the garden belongs to him and the owner subsequently gives a declaration and then sells to the renter that denied, the sale is void because he has witnesses that he is under duress- the witnesses that testify the renter denied in court. They will act as the witnesses on the declaration. The same applies to anything similar.

Paragraph 8- When is this true? In a case of duress because the buyer himself is a “chamsan” forcing the seller to sell against his will. In the case of one who steals and is established as a thief and then purchases the field he sold, however, the seller does not need to give a declaration, as will be discussed.

Paragraph 9- The witnesses on the declaration can themselves sign on the sale that the declaration was given on and there would be no issue. Even if the seller tells the witnesses in front of the buyer that he is selling on his own free will, the declaration would still be valid. Just as the buyer compelled him to sell against his will, so too did he compel him until he said he is selling on his own free will. See earlier in Siman 46 with respect to whether witnesses are believed to say a declaration was given on their testimony. A declaration document that is undated and the witnesses are not present so we do not know whether it was made before the sale or after, is valid and would void the sale because once we know the source of the duress there is a presumption the declaration was given prior.

Paragraph 10- Similarly, if the seller admits in front of the witnesses that he took the money after making the declaration, he would not be required to return anything because the buyer compelled him to admit as such, and the witnesses already know he is under duress. If he counted the money in front of them, however, he would be required to return it.

Paragraph 11- If the sale witnesses testified that the seller voided the declaration, the declaration is void. If he tells the declaration witnesses, “know that any kinyan I take to void the declaration is all void and I am only saying it because of the duress that you know about and I have no desire to ever make a kinyan to this buyer,” the sale would be void, even if they made a kinyan to void the declaration. If, however, he went and voided all his prior voidances, there are those who say it would be effective. We in fact have the custom to write in documents to “void all declarations that emerged as result of this for all eternity.” This is only true with respect to a sale. With respect to a gift, however, so long as we aware of his duress there will be no gift, even if he voided the declaration. If we are not aware of the source of his duress, however, a declaration would even be effective for a gift. Similarly, if a party confesses on anything he is not required to give, it has the status of a gift for all matters.

Paragraph 12- What type of duress did they say can void a sale? Duress that comes from another person. Duress that is internal, however, such as where he is selling because he is pressed for money, would not void a sale. Even duress that comes from another person is only where they compelled him to sell, but if they did not force him to sell but to give money and because he did not have money he needed to sell, that is not duress and the sale would be valid. This all refers to a case where they compel him to sell so we say that because of the duress he willingly transfers ownership. If they forced him to buy, however, there would be no kinyan.