Wants to back out of purchasing an apartment due to damages
Question
Shalom.
He signed a contract for an apartment and began transferring the money, and it turned out that there is a leak in the apartment. The sellers said they would leave money at the end for the repair, but the buyer did not agree and stopped the payments until they would sign that they are liable to repair the leak. They refused to sign and, at the same time, opened proceedings against him for breach of contract because he stopped the payments. He summoned them to a Beit Din, and they refused to come. May he go to the civil court and sue for the penalties, as well as for breach of contract?
Answer
Shalom u’vracha.
The contract must be examined to ensure that the conditions in it do not constitute an asmachta, and that all the halachic rules regarding conditions are fulfilled. If so, he is permitted to sue for breach of contract, and if they do not come to the Beit Din, he will receive authorization to go to the civil court.
(From the story it is clear that there is a breach of contract on the part of the sellers, who are obligated to take care of repairing leaks and not evade this, and therefore he is entitled to the money according to Halacha. However, if the contract was not written properly according to Halacha in the laws of conditions and in the laws of asmachta, he will not be able to recover his money. Nevertheless, if he summoned them to a Beit Din and they did not come, he may sue in the civil court and obligate them in whatever the civil court obligates, as explained in the Rema, Choshen Mishpat 26:1. And even if afterwards they wish to return to Beit Din, they are not accepted, as explained there.)
