Mechirah - Chapter 30

See Hilchot Zechiyah UMatanah 4:2, which explains that when a person wants to give a present to a colleague, that person can act on the recipient’s behalf without the recipient’s knowledge. Since it is an advantage for him, we assume that the recipient would desire to receive the property, and de facto, it is considered as if the person were appointed as the recipient’s agent.

For property acquired by an agent is considered as if it has been acquired by the principal. Thus, the transaction has been finalized.

For a person cannot be forced to acquire property against his will.

For the deed of sale is only to the purchaser’s benefit; it cannot cause him any loss. And if he does not desire the purchase, he can destroy the deed.
When citing this ruling, the Shulchan Aruch (Choshen Mishpat 238:1) adds the comments of the Tur, which state that this law applies only when the witnesses saw the recipient of the field (or his agent) acquire the field through a valid kinyan, or when the seller testifies that it was acquired through a valid kinyan.
Sefer Me’irat Einayim explains that the Tur’s ruling is intended to negate an opinion that maintains that when the witnesses sign the deed of sale, they effect the transfer of the property. In Hilchot Malveh V’Loveh 23:5, the Rambam states that a contract of loan can be written for the lender even though the borrower is not present, only when the contract contains a kinyan - otherwise, it is forbidden to write such a contract, lest the loan not have been given and the date thus be incorrect. Nevertheless, here and in Hilchot Malveh V’Loveh 24:1, the Rambam does not make such a statement with regard to a deed of sale.

Because the composition of the deed is to his benefit.

In which instance, it is to the seller’s benefit for the sale to be finalized. Nevertheless, the responsibility for paying for the deed of sale is the purchaser’s.

See the gloss of the Maggid Mishneh.

A Canaanite servant does not have an independent financial capacity. Whatever he owns or acquires belongs to his master. Moreover, he cannot acquire anything - even for his master - on his own initiative alone; his master must approve his actions.
The master is not, however, obligated to accept his servant’s acts. If he desires to confirm his servant’s act, retroactively, the kinyan performed by the servant is binding. If he does not, the servant’s act is of no consequence.

With regard to a purchase, the money that was given for the purpose must be returned.

This refers both to the acceptance and to the rejection of the servant’s act. The owner need not perform a kinyan to acquire the object if he desires to confirm the servant’s act, nor must the original owner of the object perform a kinyan to regain possession of it, if the servant’s master decides to nullify his deeds. (See Sefer Me’irat Einayim 235:54.)

Over which she has no control whatsoever.

As the Rambam states in Hilchot Ishut 16:1, nichsei tzon barzel refers to property owned by a woman that she brings to her new home and for which her husband takes responsibility, promising to return its cash value to his wife in the event of his death or divorce.

I.e., the husband promised his wife a sum in a prenuptial agreement in the event of his death or divorce and designated a specific property for her from which she could collect this sum.

See Hilchot Ishut, loc. cit., which defines nichsei m’log as property owned by a woman that she brings to her new home, for which her husband does not take responsibility. Instead, in the event of his death or divorce, the property is returned to her as is.

With regard to property that belongs to the husband, the rationale is that if he approves of the transfer, the woman is retroactively considered to be her husband’s agent. If, however, he does not approve of the transfer, it is nullified, for she has no right to sell his property.
With regard to property that belongs to the woman, she would have the right to sell it. Nevertheless, part of the financial dimensions of the marriage contract is that a woman’s husband is given full control of all property that she owns. Therefore, unless he consents to the sale, it is nullified.

This applies to property designated as nichsei tzon barzel. [See the Rambam’s Commentary on the Mishnah (Bava Batra 3:5).] The laws governing property designated as nichsei m’log are stated in the following halachah.

If, however, the woman agreed to the sale of the property first, and then the husband performed the sale, the sale is binding. (See Halachah 5.) Similarly, if she writes a legal document taking responsibility for the property, the sale is binding.

Thus, the purchaser covered himself, receiving the approval of both the husband and the wife.

The Maggid Mishneh states that the sale is nullified immediately and is not binding at all. In his Commentary on the Mishnah (Gittin 5:5), the Rambam appears to rule differently, staling that when the woman comes to claim the money due her by virtue of her marriage contract (i.e., at her husband’s death or the couple’s divorce), the property is granted to the woman. Implied is that until then, it remains in the possession of the purchaser. From the Rambam’s ruling in Hilchot lshut 22:15, it would appear that he changed his perspective and followed the approach mentioned by the Maggid Mishneh.

I.e., her acceptance did not reflect a genuine commitment. It is as if she had been forced to do it, lest her husband become upset at her failure to uphold his decisions.

For this property belongs to her.

A second kinyan is not required. Retroactively, we consider the husband to have acted as the woman’s agent.
With regard to nichsei m’log, we do not say that a woman can claim that she agreed to a sale conducted by her husband in order to grant him satisfaction. The rationale is that he has no claim to the ownership of this property at all, and he would not be justified in pressuring his wife to agree to its sale.
With regard to nichsei tzon barzel, by contrast, since the husband has already guaranteed to pay the woman the value of the property, she might acquiesce to his demands in order to preserve peace within the home. Therefore, our Sages protected her rights.

For in the event of her husband’s death or the couple’s divorce, the woman has the right to receive these goods themselves.

The rationale is that unlike the case with landed property, the woman does not expect that she is certain to receive this movable property, for movable property is subject to destruction. As the Maggid Mishneh states. this view is not accepted by all authorities.

I.e., should her husband’s estate lack the resources to settle her marriage contract in the event of his death or the-couple’s divorce.

Since landed property is involved, we assume that the property will not be destroyed by the purchaser - and that if the necessity arises, she will be able to obtain her due through legal process.
Our Sages enacted certain provisions because they were aware that women did not like appearing in court and would at times forfeit claims rather than do so. Nevertheless, in this instance, they felt that it was preferable not to enforce this restriction, because it is possible that the man’s estate will have the money to meet his obligation.

I.e., before her husband sold the property. If she agrees to the disclaimer afterwards, she can retract, claiming that she agreed so as not to create strife with her husband, as explained above.

Stating that she agreed to the sale and would not expropriate the property from him.

But not nichsei m’log, as explained in the notes on Halachah 4.

Hilchot Ishut 22:6, 18. In this instance as well, we explain that she can rationalize her conduct, explaining that she merely wanted to satisfy her husband’s demands and prevent strife from arising between them.

This refers to orphans below the age of majority (or under the age of 20), who cannot take financial responsibility for the property in their possession. The court serves as “the father of the orphans” and must either administer their property itself or appoint a guardian to do so.
These laws are mentioned in this chapter because the court and the guardians serve as agents for the orphans. The Rambam defines when they have the authority to act on the orphans’ behalf and when they do not.

See Hilchot Nachalot 11:10, which states that a guardian may not even give charity on behalf of his ward. Note also the preceding halachot of that chapter, which place certain restrictions on the sales that he may undertake on a minor’s behalf.

See Hilchot Shabbat 23:12-13, which explains that these activities are forbidden lest a person write.

The Shulchan Aruch (Choshen Mishpat 235:28) adds that these laws also apply on Yom Kippur.
See the Rambam’s Commentary on the Mishnah (Sukkah 3:11), which states that a present may be given on a holiday, if it is necessary to do so for the observance of the holiday.

I.e., stripes for rebellious conduct (makkot mardut), the punishment given for the violation of a Rabbinic command.

This applies even when the person is compelled to sell or give away his property.

The bracketed addition is made on the basis of the Shulchan Aruch (Choshen Mishpat 195:11).