MISTAKE

A legal transaction requires that the "making up of the mind" (or the conclusive intention of the parties to close the bargain – gemirat ha-da'at) be demonstrated (see acquisition , Modes of). When it is apparent that one of the parties lacked such conclusive intention, the transaction may be voided, but only at the instance of that party. One of the factors showing that the required conclusive intention was   missing is mistake, whether caused by the mistaken party himself or by the other party, whether willfully or unintentionally or whether relating to the subject matter of the transaction, its price, or any other aspect of the transaction. In all these cases the mistaken party is allowed to withdraw from the transaction, provided that the mistake is outwardly and objectively revealed, and not of a subjective nature only, even if it can be proved. The contracts of sale and marriage exemplify the rules of mistake in Jewish law. An error as to price is generally termed ona'ah (overreaching), but when relating to the subject matter or any other aspect of the transaction it is termed mikkaḥ ta'ut (mistake). If the mistake is common to both parties the contract is voidable at the instance of either of them, otherwise it is voidable only at the instance of the mistaken party (Maim., Yad, Mekhirah 17:1–2). If however the latter consented to the transaction as actually carried out, such consent being demonstrated by him either explicitly or by his subsequent use of the subject matter of the transaction with knowledge of the mistake (ibid. 15:3), he may not withdraw from the transaction, even though it does not accord with his original intention. Since the test for mistake is an objective one, the transaction will be voidable only if the majority of those of a particular place and time would consider it material, so that one would generally be expected to refuse to accept the property sold if the true position were made known (ibid. 15:5). Thus, if bad wheat is sold as good, i.e., a mistake as to quality, the purchaser may withdraw. Similarly the seller may withdraw if he purported to sell bad wheat, which is in fact found to be good. If the mistake concerns the nature of the object sold, e.g., when a person sells dark-colored wheat which is found to be white, or olive wood that turns out to besycamore, both parties may withdraw since this is not what was agreed upon (ibid. 17:1–2). Similarly the discovery of a defect in the property sold entitles the purchaser to void the transaction, provided that he has not waived such right by his interim use of the property (ibid. 15:3). The purchaser retains the right even if the seller mentioned the defect at the time the transaction was negotiated, but did so in a manner that would not normally be taken as revealing the true existence of the defect. An example of this kind of mistake would be if the seller declares, "this cow is blind, lame, given to biting, and to lying down under a load," and it is found to have one or other of these latter two defects but is neither blind nor lame, since the purchaser naturally assumed that the latter defects were as nonexistent as the two former ones (ibid. 15:7–8). (Shalom Albeck) -Unexpressed Intentions The Talmud determines that for non-conformity with the parties' intentions to be regarded as a mistake, there must be an expression and disclosure of the intention; it is not sufficient for the error to arise as a result of unspoken intentions. The rule formulated by the amoraim was that: "devarim she-ba-lev einam devarim" (lit: "words of the heart" (unexpressed words), are not words" (Kid. 49b). The rationale for this rule is that when the mistake is the consequence of the person's misleading himself, by keeping his thoughts to himself and not sharing them with the other party, the misunderstanding is not considered a mistake (Tosafot Rif ha-Zaken, ad loc.). However, there is a category of facts that need not be expressed, where one can presume that the parties understood each other (um-dana mukḥahat = presumption of common sense; see: evidence ; Ḥazakah ). In reliance on this principle, the court can determine which facts can be presumed (even when unexpressed), because they constitute "information known and understood by everyone" (Ran on Rif, Kid. 20b (Comm. on Rif); Tos., Kid. 49b). -Mistake in Motivation for Performing Transaction The Babylonian Talmud (Ket. 97a) records a discussion between amoraim concerning a person with a specific motive for a particular sale, and who after its completion found out that the grounds for his motivation did not exist. Can this person, under these circumstances, annul the sale? The Talmud concludes that he can: "If a man sold (a plot of land) and (on concluding the sale) was no longer in need of money the sale may be withdrawn." Nonetheless, according to halakhic rulings, this case of mistake, based on an unproven motive, is governed by the same rule that governs all other cases of mistake: namely that the transaction can only be voided if the seller formally stipulated that the transaction was conditional. Absent such an express stipulation, the seller's intention would be considered unexpressed, as explained above (Rif, Ket. 56a; Yad, Mekhirah 11:8). -Deceit An error by one party caused by or under the influence of another constitutes deceit. If this deceit is intentional, it constitutes a fraud or ona'ah (see Ona'ah ; fraud ; theft and robbery ). Such a deceit is considered a transgression of the biblical prohibition: "When you make a sale to your fellow or make a purchase from the hand of your fellow, you shall not wrong one another" (Lev. 25:14). This prohibition does not only refer to fraud regarding the value of a sale, but also to any form of swindle as proscribed by the Torah (R. Moses di Trani, Kiryat Sefer, Mekhirah, 18). There is yet another explicit prohibition regarding deceiving a purchaser in weights and measures: "You shall do no unrighteousness in judgment, in measure of length, weight, or volume. You shall have just scales, just weights, just dry measures, and just liquid measures" (Lev. 19:35–36); and: "You shall not have in your house diverse weights and measures, a great and a small… For an abomination to the Lord your God are all who do such things, all who act corruptly" (Deut. 25:13–16). Talmudic literature extends this ruling of the prohibition of willfully defrauding others with weights and measures, to include the merchant's duty to ensure that his weights and measures are accurate. Thus, the Mishnah states (BB 88a) that weights and measure must be regularly cleaned from the residue that tends to settle and congeal therein, and the Talmud states that weights must not be made of materials which corrode and wear away (ibid. 89b). The validity of a fraudulent sale is the same as that of a mistaken sale, and as in the case of an intentional deceit, the sale may be rescinded, as explained above. The laws of marriage provide an example of deceit which can result in the annulment of the transaction. The Rashba rules that where a person betrothed a woman using a cup (see marriage ), but told her: "You are betrothed to me with this ring," and she accepted the cup, without noticing the object being handed to her – she is not betrothed, because he misled her, and even if the cup was worth more than the ring (Resp. Rashba, vol. 3, no. 1186). A person causing deceit, including deceit by failure to disclose, e.g., the seller's silence when he knows that the buyer is making a mistake in a particular transaction (because the sale involves a defective item which was unnoticed by the buyer), is obligated to compensate the buyer. The Babylonian Talmud (BB 93b) records a dispute concerning a person who sold garden seeds that did not grow. In such a case, is the seller required to reimburse the buyer for the seeds alone, or also for the buyer's expenses incurred during the unsuccessful planting, such as plowing expenses, hiring laborers to sow the field, etc. (Rashbam, ad loc.)? The particular talmudic passage deals with a case where the seller was not aware that the seeds were defective. Yet, if the seller had been aware that they were defective and unable to sprout, the Talmud rules that he is also required to pay the buyer's expenses. Thus, the Tur (ḤM 232:20) cites the Rema's ruling that: "One who purchases an item which is defective… if the seller knew of the defect he is even obligated to pay the expenses the buyer incurred, because of the law of garmi" (see gerama and garme ); and the Shulhan Arukh rules accordingly (ḤM 232:21). -Remedies Not Involving Rescission of Transaction When the defect (mistake) can be repaired or compensated for, the deceived party can only recover the cost of the repair or addition but not cancel the agreement. In the Babylonian Talmud, the amora, Rava, rules that: "anything sold by measure, weight, or number… is returnable" (Kid. 42b). Maimonides rules as follows: "If a person sells a specific measure, weight, or number, and made an error, the aggrieved party may always void the sale … For example, if someone sold nuts at the rate of 100 nuts per dinar, and there were only 99 nuts, the sale is binding and even many years later the amount overcharged must be returned, … because the transaction was made in error…" (Yad, Mekhirah 15:1–2). Commenting on these words, the Maggid Mishneh cites Ri Migash's ruling – that such a sale is valid and not void, and the seller must merely compensate the buyer for the exact sum he paid. This ruling applies even when the margin of error is more than a sixth of the real value, the sale is still binding and the seller need only make good on the discrepancy. The law of ona'ah does not apply in this case because ona'ah only applies when the deceit relates to the essence of the intrinsic value and not to the quantities – their weight, size, or number (ad loc.). -Mistake in Knowledge of the Law Where a person performs a legal act relying on a legal presumption stemming from his misunderstanding of the law, as in any case of a mistake, his act is revocable. This emerges from the opinion of the Sages cited in a baraita (Arakhin 5a), that states that a person who vows to give the fixed value of an infant less than a month old – for whom the Torah does not assign any value at all – "has said nothing" (i.e., the vow is meaningless). The Talmud clarifies that since his vow stems from an ignorance of the law there are no practical ramifications to the undertaking he assumed as a consequence of his mistake. This is in contrast with an act of waiver (see Meḥilah ) where a person's act is based on his misunderstanding of the law. Regarding a mistaken waiver the halakhic authorities are divided. Many contend that a mistaken waiver should be considered valid. This was the ruling when a minor gave land as a gift – an act which has no legal effect, i.e., since the one giving the gift is a minor, the gift is revoked and the land returned to the minor. The purchaser need not pay for usufruct he has enjoyed from the property, because by giving it, the minor waived his right thereto, in his belief that he had given the land. Notwithstanding that this waiver originates in a mistake in the knowledge of the law – it is nonetheless regarded a valid waiver (Resp. attributed to Naḥmanides, no. 2; Rashi, BM 66b; Resp. Rivash, 375). In contrast, other halakhic authorities rule that such a waiver, just like any other legal act which is invalid if performed as a result of a mistake of law, is not regarded as a waiver and has the status of any other legal act which is invalid if performed as a result of a mistake of law (Maḥaneh Efrayim, Zekhiyah, 35; Shevut Ya'akov, vol. 3, no. 173). -Errors in Formulation and Drafting of Documents and Regulations The resolution of contradictions between an earlier part and a later part of the same deed is governed by two legal rules. The first – "one is always to be guided by the lower entry" (Mish., BB 10:2; Yad, Malveh ve-Loveh 27:14; Sh. Ar., ḤM 42:5) – determines that whatever appears at the end of the document is decisive and in cases of contradiction represents a retraction of what was previously stated in the document. Concurrently, when the application of this rule is not feasible, because it is obvious that what is stated at the end of the document is a mistake, and not a retraction, the guiding rule is that "holder of the deed is always at a disadvantage (i.e., weaker)" (Ket. 83b; Yad, Malveh ve-Loveh 27:16). Similarly, if the "mistake" indicates that the undertaking party misunderstood the law, here, too, as detailed above, the rule that "holder of a deed is always at a disadvantage" applies (Resp. Maharik, no. 94). Similarly, when a mistake is found in the wording of a communal regulation (see takkanot ha-kahal ), manifesting itself in contradictory provisions concerning the manner in   which public money is to be administered, the Rashba ruled that the latter sum is binding; this presumes that the latter sum constituted a retraction of the former sum (Resp. Rashba, vol. 3, no. 386). In another case of mistaken phraseology in a regulation affecting debts between two people, the Rashba ruled that "the claimant has the lower hand." This ruling relied both on the rule which states that "the burden of proof rests on the claimant" as well as on the fact that the regulation goes beyond the requirements of the law, and therefore in the case of doubt, the existing law is followed, and not the regulation (Resp. Rashba, vol. 3, no. 397). In yet another case the Rashba addressed the issue of an alleged error in the drafting of a regulation. The question was one of interpretation of a communal enactment concerning taxes, the objective of which was to enable a more extensive collection of taxes from the population. However, the wording of the enactment created a situation in which a particular citizen paid less than what he would have paid prior to the enactment. The community argued that the enactment should be interpreted in terms of its objective, i.e., its intent, even if this absolutely contradicts its explicit wording. The Rashba rejected their claim, ruling that the community's claims were unexpressed intentions and as such had no legal weight (lit. "words in the heart are not words"); thus, the clear language of the enactment was binding (Resp. Rashba, vol. 5, no. 282). For a detailed discussion on this topic, see interpretation . -Customs Based on a Mistaken Premise (See minhag , for the essence of a custom, the manner of its acceptance, and its validity.) As early as mishnaic times, cases are recorded where it became apparent that a particular custom was based on a mistaken premise, and the custom was then annulled. The Mishnah describes a particular custom involving a matter concerning the Sabbath laws practiced in a synagogue in Tiberias, "until Rabban Gamaliel came with the Elders and forbade them to do so" (Er. 10:10). According to the explanation of Tosafot (Er. 101b), the reason for annulling the custom was that it was based on a mistaken premise. Elsewhere in the Talmud (Ḥul. 6b–7a), R. Judah ha-Nasi annulled the custom of separating tithes on fruits and vegetables grown in Beth She'an, after it became apparent to him – on the basis of testimony concerning R. Meir's practice to eat even untithed fruits grown in that area – that Beth She'an had not been conquered by the Jews who returned from the Babylonian exile and was not sanctified by Ezra, such that the origin of the custom was based on a mistaken premise. In the third generation of amoraim of the Land of Israel, R. Avin set out a clear general ruling regarding the possibility of canceling a custom which is the result of a mistake of fact. According to this ruling, if a stringent custom – a prohibition – had been enacted despite the clear knowledge that by "the letter of the law" the matter is permitted, the custom is valid, and may not be annulled. However, if the origin of the custom is based on a mistaken premise, then once the mistake is discovered, the custom should be annulled and the prohibition undone (TJ, Pes. 4:1; 30:4). In the post-talmudic period, the authorities discussed at length the annulment of a custom which originated in a mistake of fact. In certain cases, in addition to the sharp attacks against customs that are referred to as "foolish customs," if investigation into a custom's roots indicates its mistaken premise, even if the custom was extremely widespread it was annulled, and if "this is not a custom which ought to be relied upon in matters involving financial outlay… the custom is a mistake and needs to be cancelled" (Resp. Rosh 55:10). -The Law in the State of Israel The Contracts (General Part) Law, 5733 – 1973, contains provisions concerning mistake and deceit. Section 14 provides that a party may rescind a contract which was entered into in consequence of a mistake, whether of fact or of law, when it may be assumed that – but for the mistake – he would not have entered into the contract, and the other party knew or should have known this. When the other party did not know or need not have known this, the court may exercise its discretion. As in Jewish law, if the contract can be maintained by rectifying the mistake, provided the other party is prepared to rectify the mistake, then this course should be followed. Section 15 establishes that in a case of deceit, the contract may be rescinded, even if the deceit includes the non-disclosure of facts which the other party – by law, custom, or circumstances – should have disclosed. The law emphasizes that a mistake as to the worthwhileness of a transaction does not constitute grounds for rescission of the contract. (Menachem Elon (2nd ed.) -BIBLIOGRAPHY: Gulak, Yesodei, 1 (1922), 63f.; 2 (1922), 156; Herzog, Instit, 2 (1939), 116–29. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:233, 359, 361, 373, 378, 383, 386, 498, 573, 647, 723, 727, 730, 760f., 774, 801f.; 2:978; 3:1381; idem, Jewish Law (1994), 1:263, 433f., 436, 452, 458, 464, 468; 2:607, 706, 801, 892, 896, 901, 936f., 952, 982f.; 3:1182; 4:1645; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 1:119; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 78; S. Warhaftig, Dinei Ḥozim be-Mishpat ha-Ivri (5734), 53–116; I. Warhaftig, "'Devarim she-ba-Lev' ve-Ta'ut," in: Dinei Yisrael, 3 (5732), 191–206; idem, "Haganat ha-Ẓarkhan le-Or ha-Halakhah (Mekaḥ Ta'ut u-Geneivat Da'at)," in: Teḥumin, 3 (5742), 335–82.