The Millers wanted to move and began showing their house to people. First to see it were the Adams. They said they were very interested but didn’t make a concrete offer.
Then the Borensteins came to see the house. They called back the following day, with an offer of $350,000.
The following week, the Cutlers came to see the house. “We’re willing to pay $330,000,” they said on the spot. “What do you say?”
“We already received an offer $20,000 higher from someone else,” Mr. Miller said.
“Then we’re willing to raise our offer to $360,000,” said Mr. Cutler.
“We’ll consider it,” Mr. Miller replied.
Shortly afterwards, the Adams called back. “We’re still very interested in the house,” they said, “and we’re willing to pay $360,000 for it.”
Meanwhile, the Borensteins called back and asked whether their offer was accepted. “Someone topped your offer by $10,000,” Mr. Miller replied.
“That’s no problem,” said Mr. Borenstein. “We’re willing to match that offer.”
That evening, Mr. Miller discussed the issue with her wife. “At this point, all three couples are offering $360,000,” he said.
“Who was first?” asked Mrs. Miller.
“It’s hard to say,” Mr. Miller laughed. “The Adams saw the apartment first, the Borensteins made the first concrete offer, and the Cutlers were the first to offer $360,000. So all three couples were ‘first’ in one way or another.”
The Millers decided to call Rabbi Dayan, and asked him, “Which couple should we sell the house to?”
“Although a transaction requires a formal act of acquisition [kinyan] to be halachically binding, an upright person is expected to honor his verbal commitments unless changed circumstances warrant otherwise,” Rabbi Dayan replied [Choshen Mishpat 204:11].
“A person who doesn’t uphold his verbal commitments is termed untrustworthy – ‘mechusar amana’ – and the Sages are not pleased with him [Choshen Mishpat 204:7].
“Nonetheless, the Rishonim indicate that only if the parties agreed on a price is there an issue of mechusar amana. Some add that other terms of sale must also be finalized [Choshen Mishpat 204:6; Meiri, Bava Metzia 48a; Pischei Choshen, Kinyanim 1:2].
“The Gemara [Bava Basra 86a] also indicates that even if the parties made a kinyan, if they made it before there was an established price, it is not halachically binding since there can’t be a firm commitment [gemirus daas] without a set price since the parties might not agree on the price [Choshen Mishpat 200:7].
“Thus, before agreeing on a price, there is no commitment, not even a moral commitment on the level of mechusar amana. Thus, you are free to sell to whoever you want or to whoever will upgrade to a better offer, even if one couple saw and expressed interest first.
“In general,” concluded Rabbi Dayan, “the concept of ‘first come, first served’ is rooted primarily in the common practice of implicit agreement between people to enable social orderliness [see Chashukei Chemed, Sanhedrin 8a]. In the specific context of a private person selling his house, it is less applicable, but if you have no reason to prefer one offer over the other, it can provide a default guideline.”