Mechirah - Chapter 16

In contrast to seeds that are themselves eaten, as mentioned in the following halachah.

This applies even if the seller was not aware that the seeds were not productive (Sefer Me’irat Einayim 232:46).

He is not, however, responsible to reimburse him for the money spent in planting the seeds, (Kessef Mishneh; Sefer Me’irat Einayim 232:46) or the loss he suffered in not having a crop to harvest that year (Kin’at Eliyahu).

Therefore, there is no need for him to make an explicit stipulation to this effect.

Sefer Me’irat Einayim 232:47 states that if there are no obvious external factors that could have prevented the seeds from growing, we assume that the reason they did not grow is that the seeds were not fertile, and the seller is responsible.

As long as the owner did not specifically say that he was purchasing the seeds to sow, the possibility (or probability) exists that he was purchasing them to cook.

The Tur and the Ramah (Choshen Mishpat 232:21) quote an opinion that maintains that if the purchaser had not paid the seller, he can withhold payment, claiming that he purchased the seeds for the sake of sowing them.

This reflects the principle (Bava Batra 92b): B’mammon ein holchin achar harov, “In financial matters, the ruling is not determined by the higher probability.”

I.e., it is considered as if the purchaser specified that he is purchasing them solely for that purpose.

I.e., if these seeds are used only for medicinal purposes or for dyes, the laws mentioned in Halachah 1 apply. If they are also used for food, the laws mentioned in Halachah 2 apply.

The previous halachot relate that the seller had to suffer the loss when the seeds were not fertile [i.e., the article he sold had a blemish]. Since the purchaser informed him that he was purchasing the seeds to sow - despite the fact that they were destroyed, the seller is not reimbursed for them at all. Similarly, since the purchaser informed the seller that he was taking the merchandise to a distant place, and it was discovered that it was unfit to sell because of a blemish, the purchaser is not responsible to return the merchandise to the seller.

And then I will reimburse you.

The above applies if the seller was not aware of the blemish the article possessed. If the seller was aware of the blemish, not only is he responsible to pay for the return of the article, he is responsible to pay for the purchaser’s cost of transporting the article [Shulchan Aruch (Choshen Mishpat 232:21)].

The simple meaning of the Rambam’s words appears to be “after he notified him of the blemish that the article possesses.”
In his Kessef Mishneh and in his Beit Yosef, Rav Yosef Karo raises the question regarding the ruling when the article is lost or stolen after the blemish was discovered, but before the purchaser notifies the seller. Because it appears to him that the seller would be responsible, he interprets “after he notified him” as referring to the purchaser’s informing the seller that he desired to sell the article in a distant place. See Sefer Me’irat Einayim 232:51.

And the purchaser is not responsible.

This can be considered comparable to an instance where a person purchases flax seed without informing the seller that he intends to sow it. Since the flax seed can also be eaten, the seller is not liable to suffer the loss if it is sown. Similarly, in this instance - since it is possible that the purchaser will sell the merchandise without transporting it - if he does not notify the seller of his intent, the seller is not liable.

This is speaking about an instance where the article is not transported to a distant place.

I.e., the purchaser is regarded as a renter.

The Kessef Mishneh questions why the article is considered to be in the purchaser’s domain after the owner is notified about the blemish. Significantly, he does not discuss the matter in his Beit Yosef, while in his Shulchan Aruch (Choshen Mishpat 232:22) he quotes the Rambam’s wording verbatim. Sefer Me’irat Einayim 232:54 indeed interprets the term “return” as meaning “notify the seller of his intent to return it.”

I.e., if there would have been an advantage in notifying the seller, because he could have disposed of the produce before it spoiled.

And he must suffer the loss.

The Maggid Mishneh states that an ox that can be used for plowing is ordinarily more expensive than one sold for slaughter alone. The law stated by the Rambam applies only in an abnormal instance, when the price of an ox acquired for slaughter is the same as that sold for plowing. Otherwise, from the price that the purchaser paid, we could determine his intent. This concept is quoted by the Shulchan Aruch (Choshen Mishpat 232:23).

I.e., when he is both a butcher and a farmer (Rashbam, Bava Batra 92a).
The Shulchan Aruch (loc. cit.) explains that the above ruling applies only when the purchaser has already paid the seller. If, however, the purchaser has not paid yet, the seller may not expropriate the money from the purchaser. This applies not only when the majority of people buy oxen for plowing, but even when the same number buy for slaughter as for plowing. Since the seller desires to expropriate money from the purchaser, he is required to prove his claim indisputably.

If the seller does not know the purchaser, he can honestly explain that he was unaware of the purchaser’s intent (Ibid.).

For he is only a farmer (Ibid.).

It is as if he made an explicit stipulation that he was purchasing it only for the purpose of plowing.

Trefah means possessing a blemish that will cause the animal to die within a year. Such an animal is forbidden to be eaten; even proper ritual slaughter does not cause it to be permitted.

The Ramah (Choshen Mishpat 232:12) rules that even if there is a doubt whether a condition renders an animal trefah or not, and it is forbidden to be eaten for that reason, the transaction is considered to have been concluded under false premises. For as a result of the blemish, the animal may not be eaten.

E. g., the animal has an internal wound that renders it trefah and the wound had already become covered by a scab. We know that it takes at least three days for a scab to form. Therefore, if the animal had been purchased within three days, we can assume that it was trefah at the time of the sale. See Chapter 20, Halachah 15.

Since the animal was unfit for slaughter, the sale was carried out under erroneous premises.

In this instance, the animal that is trefah.

In this instance, the purchaser slaughters the animal, making it unfit to be used for any other purpose.

Since this is the ordinary practice, the seller could have expected him to perform the act that he performed.

Although he is allowed to return the article he purchased because of the original blemish, since the blemish that he made was a deviation from the ordinary practice, he must take responsibility for it.

The Maggid Mishneh states that the laws stated in this halachah are also derived from the case mentioned in the first clause of the previous halachah.

He is not responsible for the garment’s reduction in value.

Sefer Me’irat Einayim 232:32 explains the situation as follows: The purchaser paid ten dollars for the garment, but because of the defect it was really worth only eight. The cloak he fashioned was worth nine.
He should receive eleven dollars from the seller: the ten he originally paid, and one for increasing the value of the garment.

For if the transaction is nullified, it is as if the land had always been in the possession of the original owners. Thus, the purchaser is considered as having taken benefit that was due them. Moreover, since the purchaser receives the money that he originally paid, it resembles a loan, and the benefit he receives thus appears like interest. See Hilchot Malveh V’Loveh 6:4; Sefer Me’irat Einayim 232:33.

Sefer Me’irat Einayim (op. cit.) explains that even if the purchaser did not pay the seller before discovering the blemish, he must still pay him rent for the use of his courtyard.

The teeth used to grind food. These are essential for an ox, which relies primarily on grain for its sustenance.

For if he had placed it alone, he would have seen that it was not eating and should have inspected it, discovered the blemish and returned it to the seller, as stated in the following halachah.

The rationale is that we assume that the seller knew of the blemish and concealed it, in order to receive a higher price from the purchaser. Therefore, although the purchaser is responsible for checking his purchase, as stated in the following halachah, the seller is held responsible. See Sefer Me’irat Einayim 232:40.

And the purchaser is required to suffer the loss.
Although the Shulchan Aruch (Choshen Mishpat 232:18) quotes the Rambam’s ruling, the Ramah differs. He holds the broker responsible. He maintains that although the broker was cheated, that does not give him the right to cheat others, and he must reimburse the purchaser for selling him a blemished ox.

A firstborn animal is consecrated. In the present era, because the Temple is destroyed, the firstborn animal cannot be offered as a sacrifice. Therefore, the owner must wait until it suffers a blemish that renders it unfit for sacrifice. Once it suffers such a blemish, it should be given to a priest. Even if it is not given to a priest, its meat may be eaten by an Israelite (Hilchot Bechorot, Chapter 1).

As stated in Hilchot Bechorot, Chapter 3, even if a firstborn animal has an obvious blemish, its owner may not determine himself that it is unfit to serve as a sacrifice. Instead, he must show it to a recognized expert, who will render a ruling.

Although he derived benefit from eating the meat, because he was forbidden to partake of it that benefit is not taken into consideration. See the Sefer Meirat Einayim 232:4 which states that since the food that was eaten was forbidden, the person’s soul is revolted by the deed and is not considered as having derived benefit from it.

I.e., it is considered as if the sale had been concluded under an erroneous premise, and the seller is required to suffer the loss.

He must then bury the meat, as stated in Hilchot Bechorot 3:4. Sefer Me’irat Einayim 234:2 states that the purchaser should bury the meat lest the owner sell it to gentiles.

In this situation as well, it is considered as if the sale had been concluded under an erroneous premise, and the seller is required to suffer the loss.

The seller may sell this meat to gentiles, feed it to animals or use it for any purpose other than Jewish consumption.

An understanding is necessary, for the butcher may claim that he could have sold the meat for a higher price.

For kosher meat is always more expensive than non-kosher meat.

I.e., with regard to all forbidden entities from which it is permitted to benefit.

I.e., produce from which the terumot and the tithes have not been separated. See Hilchot Ma’aser 1:9, which states that the prohibition against eating tevel is Scriptural in origin.

See Hilchot Ma’achalot Asurot, Chapter 11, which explains the Scriptural prohibition against such wine.

The rationale is, as stated above, that the soul is repelled by forbidden foods, and the benefit is not considered to be benefit.

Premature death, the death of one’s offspring and severe punishment in the spiritual realms.

The Rivash (Responsa 499) writes that there is no explicit source for this ruling. The Rambam derives it from the fact that Bechorot 37a, the source for the law requiring that the money be returned, mentions only Scriptural prohibitions. Thus, one can assume that if the prohibition is Rabbinic in origin, this ruling would not apply.

Since the prohibition is not Scriptural in origin, the soul is not repelled to the same degree, and the benefit that the person received must be taken into account.

Even if the purchaser ate it or gave it to gentiles, the seller must return the money. For by eating it or giving it away, the purchaser did not cause the seller any loss, for he was forbidden to benefit from it in any case (Sefer Me’irat Einayim 234:6).