Mechirah - Chapter 23

I.e., the property remains the possession of its original owner, but its produce is acquired by the recipient.
The Rambam is describing a halachic convention instituted to circumvent the legal problems mentioned at the conclusion of the preceding chapter regarding the acquisition of property that has not yet come into existence. Using the convention the Rambam mentions here, the transaction involves an entity that exists, and yet it does not transfer ownership over that entity entirely, for it applies only to the property’s quality to yield produce.

There is, however, a distinction between a person who uses this convention and one who rents a field, as explained in Halachah 8.

E. g., for a month or for a year.

But after the seller dies, the field reverts to his heirs.

After the purchaser dies, the field reverts to the seller or his heirs.

Neither can retract, although the produce or benefit sold has not yet come into existence [Shulchan Aruch (Choshen Mishpat 209:4); Sefer Meirat Einayim 209:15].

Of 30 silver Shekalim, as stated in Exodus 21:32.

The unresolved question can be explained as follows: Can this example be compared to selling a field for its produce, and the same laws applied? Or should a distinction be made between the two? For a field will generally yield produce, while with regard to a servant, even if he is gored to death, there may not be a requirement of a fine. The owner of the ox may admit his responsibility before witnesses testify, in which instance he is not liable.

This is the Rambam’s ruling with regard to all questions of unresolved financial liability. As explained in the notes on Hilchot Nizkei Mammon 1:11, other authorities differ and maintain that the property that is seized must be returned.

We explain that his intent was to retain the produce itself that the tree will produce. And just as a person cannot transfer ownership of an object that has not come into existence, he cannot retain ownership over an object that has not come into existence [Shulchan Aruch (Choshen Mishpat 209:7)]. We do not say that the person intended to sell the tree to the second person with regard to the produce it yields. Instead, the first purchaser also receives the right to the produce (Rashba, as quoted by the Maggid Mishneh).

The additions are made on the basis of the gloss of the Kessef Mishneh.

I.e., as opposed to an ordinary sale, which is binding forever, this sale is binding only for a specified duration of time.

For his rights to the land involve only the produce the land yields, and not the land itself.

The Ra’avad objects to the Rambam’s statements, maintaining that since there are limitations on the time for which the purchaser owns the land, he may not make lasting changes. The Ra’avad does suggest that perhaps a person who purchases land for 60 or 70 years may make some changes. Since he owns the land for longer than a jubilee period, he is considered to be like a permanent owner. (Perhaps this is the precedent for the 99 year leases common in certain real-estate transactions.
The Maggid Mishneh uses the principle of the jubilee as support for the Rambam’s thesis. When the jubilee was practiced, a person was considered the complete owner of property with the right to do as he chose, even though the land would return to its original owner in the jubilee year. Similarly, in the present era, a person who buys landed property for a limited time may do as he chooses. The Shulchan Aruch (Choshen Mishpat 212:4) quotes the Rambam’s ruling.

The Kessef Mishneh raises an obvious difficulty: As stated in Chapter 22, Halachah 2, when a person sells the fruit that a field will produce, the sale is not binding. What then is the Rambam’s question? The difference between the two is that one sale is binding and one is not.
The Kessef Mishneh answers his question, explaining that this halachah is speaking about an instance where the seller bound himself by oath to fulfill his commitment – in which instance, he is obligated to do so, as stated in Chapter 22 Halachah 15. Or it is speaking about an instance where both the buyer and the seller desire to uphold the agreement, even though neither is obligated to do so.
See also the Sefer Me’irat Einayim 21:14 which states that this refers to a situation in which crops are already growing on the field.
Oz) follow a different version and include the point raised by the Kessef Mishneh’s question within the halachah itself.

Sefer Me’irat Einayim maintains that there is a printing error, and the intent is that the purchaser may not collect the produce within the field.

For he has purchased only the produce.

For the purchaser has purchased not only the produce, but the right to the field itself.

Seemingly, both acquire the right to use the field and harvest its fruit.

Even if the owner desired that the field be left fallow, the person who purchases it has the right to plant crops. He may even plant more crops than the norm in a particular year.

See Hilchot Sechirut 8:6,9-10, which explains that a person who rents a field from a colleague should not depart from the practices that are routine in that locale.

Hilchot Sechirut 1:4. For when a person rents property, he has the right to benefit from it, but has no right with regard to the property itself.
The Kessef Mishneh raises a question with regard to the Rambam’s statements, for the Rambam rules (Hilchot Sechirut 5:5) that although a renter of movable property may not sublet it, a renter of landed property has th. at option.
Sefer Me’irat Einayim 212:16 explains that the Rambam’s statements in Hilchot Sechirut apply only to a house, and not to a field. For if a person rents a house to someone and the renter - or the sub-leaser - damages it, the damage will be evident. If he rents a field, by contrast, the renter - or the sub-leaser - may sow additional crops in it and harm the field without that harm being detectable immediately. Hence, just as with regard to movable property, a person may tell the renter: “I do not want my property in the hands of another person,” so too, he can protest handing over his field to someone else.

The Ra’avad differs with the Rambam and maintains that an explicit statement must be made that the dovecote is being sold with regard to its benefit. Otherwise, it is considered as if the person is purchasing an entity that does not yet exist.
The Rambam, by contrast, maintains that even if he does not say so explicitly, it is as if he made such a statement. The Kessef Mishneh explains the Rambam’s decision, stating that it is impossible to sell “the benefit to be obtained from a dovecote or the benefit to be obtained from a beehive,” because in such an instance, the purchaser would be prohibited from entering the seller’s property to care for the dovecote or the beehive. (See Halachah 7.) Since such care is absolutely necessary, it is assumed that the seller is selling the rights to the dovecote or the beehive itself.
Alternatively, a dovecote and a beehive themselves have little value; they are clearly ancillaries of the doves or the honey. Therefore, they are subsidiary to the doves and the honey. When the dovecote and the beehive are sold, they are obviously being sold for that purpose. A field, by contrast, has intrinsic value and is not considered subsidiary to its crops.

In contrast to crops, which grow from the land, fish do not grow from the stream. Nevertheless, the renter has the right to catch fish. Similarly, with regard to the dovecote and the beehive, even though they do not produce their products directly, a person who purchases them is entitled to them (Sefer Me’irat Einayim 213:1).

I.e., the seller. (See Hilchot Shechitah 13:18.)

And thus, he cannot transfer ownership of them to another person.

Once the fledglings are capable of flying on their own, the prohibition of taking the mother and the fledglings together no longer applies (Hilchot Shechitah 13:9).

For according to Scriptural Law, the prohibition is against taking only the mother away from her young, not against taking the young away from their mother (Kessel Mishneh).

Once the mother bird lifts herself off the nest, the owner of the dovecote automatically acquires the eggs and the fledglings by virtue of their presence in his property. He can then transfer owner-hip of them to his colleague.

See Chapter 5, Halachah 5.

A kinyan agav, as described in Chapter 3, Halachot 8 and 9.
Even if the mother bird returns after he has acquired the eggs and the fledglings, he is no longer required to send her away. In such an instance, the dove is not considered any different from domesticated poultry, concerning which this prohibition does not apply (Sefer Me’irat Einayim 213:4).

Out of loneliness.

This is unfair, for he did not purchase the dovecote or the mothers, but only the offspring. Hence, he would be causing the seller unjust lost.

I.e., at least two fledglings.

I.e., the Rambam maintains that a mother dove must have at least two pairs of fledglings with her to feel at ease and satisfied.

I.e., the daughters of the original mother, who also breed fledglings.

For just as the mother dove needs offspring with which to establish rapport, so too, her offspring need their offspring. Thus, there must be at least five pairs of doves in the dovecote. The mother pair, the pair of offspring that were present at the time of the sale, a second pair of offspring that the mother bore, and two pair of offspring that the first pair of offspring bore.

Bees produce a new swarm of offspring every nine or ten days. The purchaser is allowed to take the first three swarms of bees to start a new beehive of his own. Afterwards, he must leave every other swarm, so as not to destroy the original beehive [Ramah (Choshen Mishpat 220:18)].

The bees build blocks of wax containing caverns in which honey is stored.

The honey is stored as food. If it is taken from the hive, the bees will have no nourishment in the winter and will abandon the hive.

This, like the previous halachot, protects the rights of the seller. Since the buyer did not purchase the entire hive, he must leave some blocks of wax in the hive so that it will not be destroyed.

I.e., he must leave enough of the tree above ground for it to regenerate and grow again. For each species of tree, a different height is required.

Since this tree was never cut down before, it needs a larger measure. Alternatively, it refers to a young fig tree (Maggid Mislmeh).