Mr. Frei was an accountant. He also ran a separate small business, selling esrogim for Succos.

“Why do esrogim cost so much?” he asked his supplier from Esrogim Orchard one winter day.

“First, esrogim require tremendous care throughout the year to protect them from scratches and spots that might render them unusable,” the supplier answered. “Second, only a select few esrogim from each tree can be sold. Most fruit never see the market!”

“I’d like to try something,” Mr. Frei suggested. “Instead of buying just the good esrogim next year and paying per esrog, I would like to buy all of the esrogim that will grow in an acre of your orchard – good or bad – for a flat fee.”

“That’s fine with me,” said the supplier, “but I will request a 10% down payment of $2,000.”

“Deal,” replied Mr. Frei.

The supplier received the money and declared: “All of the esrogim that will grow during the course of the coming year in a designated acre are hereby sold to Mr. Frei for the sum total of $20,000.”

The following May, however, Mr. Frei was relocated by his accounting firm. He realized that he would be unable to sell esrogim in his new location.

“I will be unable to sell esrogim next Succos,” he wrote to Esrogim Orchard. “I request to cancel our arrangement.”

Esrogim Orchard responded: “We do not accept this and insist upon upholding the sale.”

Mr. Frei called the supplier and explained his circumstances. “I made the agreement expecting that I would be able to sell next year, but due to my relocation I will be unable to.”

The supplier wouldn’t hear of it.

“A sale is a sale! You already bought the crop,” he said. “It’s no different from any other sale, and we expect full payment of the remaining $18,000.”

“I’m not convinced that it’s the same as any other sale,” responded Mr. Frei, “since you did not have the esrogim when we agreed in the winter.”

“So what?” retorted the supplier. “We both knew that the esrogim would grow during the year.”

Mr. Frei picked up the phone and called Rabbi Tzedek.

The rav listened to his question and said, “In principle, sale of fruit that has not yet started growing with the formulation, ‘are hereby sold,’ is not halachically binding on either party even when the fruits grow, unless the buyer already took them.”

Rabbi Tzedek then explained: “There is a major dispute in the Gemara (B.M. 66b; Yevamos 93a) whether a person can sell something that does not yet exist, such as fruit that has not yet grown or calves that have not yet been born. This is referred to in halacha as ‘davar shelo ba l’olam’ – something that has not yet come into the world.

“The halacha is that the sale of such an item is not valid. Therefore, although often not morally proper, either party has the legal ability to retract, even after the fruits grew or the calves were born. However, if the buyer already took the fruit, the sale is legally upheld. Although the initial sale was legally invalid, the seller presumably wanted to honor his word and allowed the buyer to acquire ownership immediately by taking actual possession of the fruit (C.M. 209:4 and Shach 209:5).”

“Why can’t you sell a davar shelo ba l’olam?” asked Mr. Frei.

“A transaction simply cannot take effect on something not in existence,” explained Rabbi Tzedek. “Another reason is that a person usually does not have sufficient intent (gemirus da’as) regarding something that does not exist (Kovetz Shiurim B.B. #276).”

“What if the cow was already pregnant or the fruit already began growing when the sale was made?” asked Mr. Frei.

“There is a difference between the two,” replied Rabbi Tzedek. “Even if the cow is pregnant, the calf is considered a davar shelo ba l’olam. However, with fruit, if it already began growing, it is considered to be something that is already in existence and simply gets bigger, so the sale is legally binding (Rama 209:4 and SM”A 209:9).

“Nowadays, however, when much commerce deals with items that do not yet exist and with the formulation, ‘I agree to sell,’ many poskim validate such transactions based on situmta, hischayvus and/or dina d’malchusa (to be addressed in future issues, IY”H).”