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New York - Can a person say, “All this is off-the-record” after the fact?

In other words, let’s say you tell someone some information and only later realize that you shouldn’t have told him the information. Can you instruct him not to tell anyone the information or do you no longer have the right to make this stipulation since you didn’t make it beforehand?

We may find the answer to this question in a Tosfos in our Gemorah.

Our Gemorah (Bava Basra 77a) explains that if a person says to two witnesses, “Acquire this field for Mr. Ploni and write a document attesting to the transaction” he may not retract the gift of the field but he may retract the permission to write the document.

Tosfos (Chozer) asks a question: How could it be that a person has the right to forbid witnesses from writing a proof to a transaction that they had witnessed? If there would be damage to the giving or selling party that would be understandable, but here there does not seem to be any damage!

Tosfos answers that indeed there is damage. If it becomes public knowledge that the giving or selling party now has less assets, people would be less likely to loan him money. He may therefore forbid the witnesses from putting it down on paper.

We see from this Tosfos an answer to our question. Since the donor or seller was the one who instigated the transaction, and the request for a document, he has the right to stop it too. But why? Why should he be able to stop these witnesses from helping out the new owner of the property?

It must be on account of the fact that the old owner instigated the transaction.

The same is true in our case. If you are the source of the information, it seems that you can also make after-the-fact stipulations – but only if a damage might result.

The author can be reached at yairhoffman2@gmail.com