Mr. Ganz worked in the diamond exchange.
“I have a batch of diamonds that I’m selling,” a colleague, Mr. Fried, offered him one Friday morning. “Good diamonds at a fair price!”
“I’d like to see the certificates and examine several of the diamonds,” replied Mr. Ganz.
“Certainly,” Mr. Fried responded. “I have the certificates with me and several samples.”
Mr. Ganz was satisfied with what he saw. After bargaining, they agreed upon a price. “I’d like to head home now for Shabbos, so we’ll transfer the diamonds sometime next week,” Mr. Ganz said. “But we are agreed on the deal.”
“Yes,” replied Mr. Fried. “Mazel u’bracha!”
Mr. Ganz entered Shabbos happy about his purchase.
Over the weekend, the diamond market crashed; prices dropped 25% by Monday evening!
Mr. Ganz contacted Mr. Fried. “Although we concluded our agreement last week, due to the extreme market drop, I cannot follow through with the purchase,” he said. “The diamonds were not yet delivered, and no other act of transaction (kinyan) was done.”
“We finalized the sale with ‘mazel u’bracha,’” Mr. Fried immediately responded. “You know very well that in diamond commerce, this expresses a final, binding deal! You can no longer retract. I’ll sue you for breach of contract!”
“Between observant Jews, what halachic validity does that statement have?” argued Mr. Ganz. “You need an act of transaction! After such a market crash, I don’t think that it’s unethical to retract.”
“I’ve been in the diamond business twenty years,” Mr. Fried said. “I’ve never had such a thing happen!”
The two decided to approach Rabbi Dayan and accept his ruling. They asked:
“Is Mr. Ganz halachically allowed to retract?”
“Usually, a kinyan must be made for a transaction to be binding, whereas retracting from a verbal agreement carries only the stigma of mechusar amana – lacking trustworthiness,” replied Rabbi Dayan. “Nonetheless, stating ‘mazel u’bracha’ is considered a binding obligation in diamond commerce, according to many poskim.
“The Gemara (B.M. 74a) teaches that situmta – a common commercial practice of marking barrels to indicate that they were sold – is binding, even if a proper kinyan was not made. The validity of this action also depends on the common practice there, whether to subject the one who retracts to mi shepara (like when money was paid) or even to transfer ownership (C.M. 201:1).
“The poskim derive from this that actions that the minhag hamedina considers as binding are tantamount to a kinyan. Other possible examples mentioned in Shulchan Aruch are a handshake or handing over the key to a property, where such common practices exist (C.M. 201:2).
“Nesivos (201:1) views situmta as a kinyan d’Rabbanan, whereas Chasam Sofer (Y.D. 314) and Dvar Avraham (1:1:3) view it as a kinyan d’Oraysa.
“Nonetheless, the poskim dispute whether a verbal statement alone can serve as situmta, in places where the common practice is to view verbal commitments as binding (Responsa Rosh 12:3; Kessef HaKodashim 201:1; Maharshag 113-114).
“Therefore, some poskim write that mazel u’bracha cannot be considered a valid situmta (Haaros Kiddushin, R. Eliyashiv, zt”l, p.5). Even so, it seems that mazel u’bracha is more than just a regular verbal statement. In diamond commerce, this is the code phrase for expressing a binding commitment and is mentioned in some trade laws. Thus, many poskim do consider mazel u’bracha as binding (Pis’chei Choshen, Kinyanim 10:2[3]; Teshuvos v’Hanhagos 1:803).
“Seemingly, though, the commercial practice of mazel u’bracha does not transfer ownership as other halachic kinyanim,” concluded Rabbi Dayan. “Thus, for example, if the diamonds were stolen or otherwise lost, it remains Mr. Fried’s loss. Rather, the common practice is that the parties are bound to the transaction, and that one who retracts is subject to monetary sanctions and potential lawsuits.”
Verdict: According to many poskim, “mazel u’bracha” in diamond commerce is halachically binding as a form of situmta, common commercial practice. Therefore, one may not retract, and would be subject to the sanctions of one who breaches contract and retracts from a final sale.
