The Laws Governing Sales, Presents, and [The Conduct Of] Agents and Guardians

Subsecs. 1-10 comprise the laws of sales and presents; 11-17, the laws of agents, and 15-17, the laws of guardians.

Bava Metzia 48a. As explained in Rambam, Hilchos Mechirah 1:1-2, every transaction must be formalized through an “act of contract” (kinyan in the terminology of Jewish law), i.e., a recognized legal act that brings about the transfer of property (and/or an obligation) from one party to another.

A kinyan does not require witnesses. Instead, the transaction is formalized even when the two parties perform the kinyan alone. Nevertheless, there is an obvious advantage in having a kinyan performed in the presence of witnesses: If one of the parties denies participating in the kinyan, his claim can be refuted by the witnesses’ testimony (Kiddushin 65b).

Sefer HaMitzvos (positive commandment 245) and Sefer HaChinuch (mitzvah 336) consider defining how and when transactions are binding as one of the 613 mitzvos of the Torah.

As explained in Rambam, loc. cit. 3:1, 4, according to Scriptural Law, one of the kinyanim that formalizes the sale of movable property is the payment of money. Nevertheless, our Sages ordained that mere payment does not suffice and the purchaser must formalize his acquisition of the property by lifting it up (hagbahah), pulling it after (or pushing it in front of) him (meshichah), or performing another act that indicates that he is taking possession of it. Until such an act is performed, both parties may retract.

Should a party exercise this right after payment has been made but prior to the act of formal acquisition, a Jewish court administers the malediction referred to as “mi shepara” to the one who retracts, i.e., they invoke a curse upon him, saying: “May He Who exacted retribution from the generation of the flood, from the generation who built the Tower of Babel, from the inhabitants of Sodom and Amorah, and from the Egyptians who drowned in the sea, exact retribution from one who does not keep his word” (Bava Metzia 4:2).

Bava Metzia 49a.

See Tzemach Tzedek, Choshen Mishpat, Responsum 82, where this concept is discussed at length. As emphasized there, a person who retracts in such a situation is not considered to have violated a prohibition.

Tzephaniah 3:13.

See the Alter Rebbe’s Shulchan Aruch, Orach Chayim 156:2, which includes this and some of the following laws as part of the ethical and moral norms required of a person.

Bava Basra 88a.

Tehilim 15:2, as cited by Bava Basra, loc. cit. and Makkos 24a. Those Talmudic passages mention Rav Safra as an exemplar of such conduct. In his gloss to those sources, Rashi quotes the Sheiltos of Rav Achai Gaon, Parshas Vayechi, Sheilta 36, which relate that once while Rav Safra was in the midst of the recitation of the Shema, a colleague came and offered to purchase an article from him at a specific price. Rav Safra was willing to sell him the article at that price, but did not express his consent, because it is forbidden to make an interruption at that point in prayer. The colleague misconstrued Rav Safra’s silence as unwillingness to sell at that price and offered him a higher price. When Rav Safra reached a point where he could speak, he informed the colleague of his willingness to sell at the price originally offered and refused to take more than that amount.

Implied is that if circumstances prevent him from doing so, failing to carry out his resolve is not a sign of a character flaw.

If, however, a resolve is associated with a mitzvah, it should be carried out; see subsection 4.

Since the article is of great value, the recipient does not really expect to receive such a gift. In his responsa, Mahari Veil, responsum 82, states that if the giver is wealthy, even the promise of a large present may be binding, because — for a person of means — such a gift may still be considered as a small matter. See also the following subsection.

The rationale is that since an object is a material entity, a kinyan is necessary to transfer it. An obligation, however, is absolved as soon as a statement (or a resolve) to that effect is made (Sefer Meiras Einayim 12:21).

E.g., the repayment of a debt. Rambam {Hilchos Mechirah 6:11; cited by the Shulchan Aruch (Choshen Mishpat 241:2)} states that this also applies with regard to the obligation to return an entrusted article. Rama, however, differs and maintains that the waiver of the obligation to return an entrusted article must be affirmed by a kinyan. Moreover, even with regard to a debt, if the loan is supported by a contract of loan or security, there are authorities (Rama, ibid.) who maintain that a waiver must be affirmed by a kinyan, but there are also differing views.

The Maharshal (cited by the Misgeres HaShulchan on Choshen Mishpat 12:8) states that even an unspoken resolve to absolve an obligation is binding. The Ketzos HaChoshen 12:1, however, maintains that a waiver must be made verbally to be binding.

For no transaction or commitment made in error is binding.

Vayikra 19:36.

A Biblical measure of volume for dried goods (Rashi to the above verse).

A Biblical measure of volume for liquids (ibid.).

For a hin is one sixth of an eiphah — an eiphah is 72 luggin and a hin, 12 (Rashi, Bava Metzia, loc. cit.).

Aramaic for “Yes.”

Bava Metzia, loc. cit.; see also Talmud Yerushalmi, Sh’viis 10:4. The intent is that if one utters a positive commitment or a refusal, he must carry out his word and relate to it in an upright manner.

Significantly, when speaking about making a firm and honest commitment, the Alter Rebbe speaks of a prohibition if one mentions a commitment without being certain. Previously, however, when speaking about carrying out his commitments, he does not state that one violates a prohibition by retracting. In explanation, it is possible to say that a commitment must be made wholeheartedly; failure to do so is ethically undesirable and constitutes a transgression. When, however, one made a wholehearted commitment, but was motivated to retract for various reasons, there is no outright prohibition in doing so (see Nimukei Yosef to Bava Metzia, loc. cit.). See also Imrei Yaakov (Biurim) which discusses this issue.

The logic behind this ruling appears to be that since the financial burden of the present will be divided among all those involved, each person’s commitment will be that of a small present. Alternatively, one can assume that a commitment made by many people will not be retracted (Sefer Meiras Einayim 204:14). There is a practical difference between these two rationales: when an individual’s commitment remains substantial even after the pledge is divided among all concerned.

The first clause in this subsection reflects the initial rationale. The continuation of the subsection that mentions that a promise made by the community cannot be retracted appears to continue the line of thinking indicated by the second rationale.

In the Talmud (Megilah 26a-27a) and in other texts, mention is generally made of “the seven lay-leaders of the community.” The involvement of all these individuals was necessary with regard to major decisions. With regard to minor matters, the participation of three of these communal leaders suffices (Hagahos Mordechai, Bava Metz ­ia, sections 457-458; Teshuvos MaHaRam Mintz, responsum 7).

From the Shulchan Aruch, Yoreh Deah 253:2, it appears that the definition of a poor person is one who lacks a financial base ample enough to provide a livelihood for himself and his family.

See Talmud Yerushalmi, Bava Metzia 4:2. I.e., from the standpoint of business law, he is not obligated, but it is considered a personal obligation, for he is obligated to fulfill his vow.

In his Kuntreis Acharon, (note 1,) the Alter Rebbe cites a passage in Bava Metzia 49a which states that it is not permitted to retract one’s commitment to give a small present. In that passage, the Talmud seeks to support that statement by citing a teaching that indicates that a promise to give tithes to a Levite should not be retracted. The Talmud continues, stating that if the person retracts such a promise to a Levite, the Levite has nothing more than complaints against him; he is under no financial obligation to the Levite.

Now, once a person makes a pledge to give a present to a poor person, by contrast, he is bound by it and it cannot be retracted. Seemingly, since giving the Levites tithes is a mitzvah like giving charity to the poor, such a promise should also be binding.

In resolution, the Alter Rebbe differentiates between the two instances as follows: the obligation to tithe has nothing to do with the state of the recipient; it comes about because of the grain, i.e., tithes must be separated in proportion to the grain harvested. By contrast, the motivation for the obligation to give charity is the poor person’s state and not necessarily because the donor has an obligation to give charity. Indeed, even if the donor had already given a fifth of his wealth as charity — and hence is not obligated to give more (and, indeed in ordinary circumstances, is prohibited against doing so, Kesubos 50a; the Alter Rebbe’s Shulchan Aruch, Orach Chayim 156:3) — he would still have to keep this pledge, for there is an obligation upon the community as a whole to provide for this particular poor person’s needs (Kesubos 67b; Shulchan Aruch, Yoreh Deah 250:1). Accordingly, once a promise is made to the poor person, it is binding; it resembles a vow to perform a mitzvah. There is, by contrast, no obligation to give tithes to any particular Levite. Hence, though a promise to him should be kept, the person is not irrevocably bound to do so.

The Laws of Charity; a portion of the Alter Rebbe’s Shulchan Aruch which is not extant. See Hilchos Halvaah, footnote 4 (p. 2).

With regard to the law stated, see the conclusion of subsection 1; see also Rama, Yoreh Deah 258:13.

When a person desires to sell property, a neighbor who owns an adjoining property should be given the opportunity to purchase it first. Even if it was sold to another person, such a neighbor (referred to as a bar metzra) has the right to expropriate the property and reimburse the purchaser for the price he paid. The rationale is that the neighbor benefits and neither the seller, nor the purchaser suffer a loss. The seller receives the price he desired and the purchaser’s money is returned. He can then purchase property elsewhere that will equally suit his needs. This right applies only to landed property and not to movable property. See Bava Metzia 108a; Rambam, Hilchos Sh’chenim 12:5.

Bava Metzia, op. cit. See also Hilchos Halvaah, subsection 1 above, which similarly grants priority to helping the inhabitants of one’s city albeit on the basis of a different rationale.

But not one whose property adjoins the property being sold.

Mishlei 27:10, as quoted by Bava Metzia, op. cit.

See Hilchos Metziah, sub­section 9 and notes below. It is, however, significant, that there the Alter Rebbe qualifies his words, questioning whether there are individuals in that category in the present age. Here, he does not make such statements.

This is one of the expressions of the mitzvah to honor a Torah scholar. Moreover, the presence of a Torah scholar is considered as beneficial for the entire community.

Devarim 6:18.

We have placed the final two words in brackets { } for the verse does not contain the word אלקיך. See Likkutei Sichos, Vol. 19, p. 55, note 2, where the Rebbe notes that in all probability this is simply a printer’s error.

Gittin 11b. The equation of these two statements is a matter of debate among the halachic authorities. Although the Shulchan Aruch, Choshen Mishpat 125:6-7 leaves the matter undecided, the Alter Rebbe rules that the giver can no longer retract.

Gittin, op. cit. The rationale is that it is as if the person to whom the object was given is acting as an agent of the intended recipient and once something is given to a recipient’s agent, the recipient formally acquires possession. Although the recipient did not actually appoint the person as his agent, since the matter is to his benefit, we assume that he would surely agree that this individual act as his agent (see Rashi, Gittin 9b).

There the Alter Rebbe writes that the person is not obligated to bear physical hardship to defend his colleague’s money. He is, by contrast, obligated to bear financial loss for his sake.

Gittin 32b; the rationale is that these expressions do not reflect a charge to acquire the article on the recipient’s behalf. Hence, it could be said that the giver has not relinquished ownership as of yet.

In Hilchos Halvaah, subsection 32 above, the Alter Rebbe states that when a borrower says: “‘Convey this money to so-and-so,’ or ‘Let this maneh be so-and-so’s,’ it is as if he told him: ‘Acquire this money for so-and-so.’” There is, however, no contradiction between the two rulings, because Hilchos Halvaah speaks of returning a loan, i.e., money that already belonged to the lender. Hence, the wording that gives him the rights to it can be somewhat looser. This instance, by contrast, speaks of giving a present, i.e., giving the recipient an article to which he had no right previously. Hence, the wording must be clear and exact (Imrei Yaakov).

If he is poor, the giver is obligated, as stated in subsection 4.

As mentioned in subsection 2. This ruling is based on the gloss of Rama, Choshen Mishpat 243:2. A marginal note appended to the first printing of the Alter Rebbe’s text (cited in note 53 of the present edition) raises the following question: The rationale for the distinction between a large present and a small one is that the recipient only relies on the promise of the gift of a small present. In this instance, since the intended recipient is unaware of the present being made, why would he rely on it?

I.e., the person to whom the article and the instructions were given.

Gittin 14b.

I.e., the heirs could argue that it is possible that the deceased retracted before he passed away in which instance, they would not be bound by his original instructions. They would thus claim that this possibility causes their obligation to give the property to be considered as a matter of doubt. Continuing that logic, they would allege that since the estate becomes their property and the obligation is only doubtful, they are entitled to maintain possession. Hence the Alter Rebbe emphasizes that they are obligated to carry out these instructions.

Rav Akiva Eiger (responsum 150) writes that written instructions given to and read by an heir during the giver’s lifetime are also binding. He, however, questions whether that would apply to instructions written during the giver’s lifetime, but not revealed until afterwards (i.e., a will). In practice, at present, most halachically binding wills rely on other conventions rather than the obligation to carry out the will of the deceased. See I Hereby Bequeath (R. Ezra Batzri, Machon HaKtav, Jerusalem, 5745.)

Although the giver himself would have been obligated to grant the gift to a poor person, as stated in subsection 4, and, in certain instances, even to a rich man, as stated in subsection 3, the heirs are not bound by such an obligation, as the Alter Rebbe proceeds to state.

I.e., even after his father’s death, a son is obligated to perform certain activities to honor him. He is not, however, obligated to use his own resources when undertaking any expenses for his father. See Rama and Shulchan Aruch, Yoreh Deah 240:5.

The Laws of Honoring One’s Father and Mother; a portion of the Alter Rebbe’s Shulchan Aruch which is not extant. See the Shulchan Aruch of Rav Yosef Caro (Yoreh Deah 240:5).

Kesubos 53a, Bava Basra 133b.

The Maharam Shik (Choshen Mishpat, responsum 43) states that such consideration should not be given to heirs who have thrown off the yoke of Torah observance entirely. While this position is supported by other authorities, there are also those who rule leniently and maintain that even under such circumstances, a father should not deny his children a share in his estate. For example, Dovev Meisharim (Vol. 1, responsum 43) questions the Maharam Shik’s ruling, based on the rationale given (Kesubos, loc. cit.): that the unworthy child may have worthy offspring. As Pischei Choshen, (Yerushah, ch. 4, note 4) observes, in the present time, this has become a common occurrence.

Kesubos 67b; Rama, Yoreh Deah 249:1.

Mishlei 15:27.

Kiddushin 59a.

For property to be transferred, not only the giver, but also the recipient or his agent must participate in the transaction. Since a minor is not accountable for his actions, there is reason to say that the present was never accepted and thus remains the property of the giver. Hence, the giver would have the prerogative of retracting. There is, however, reason to strengthen the legal power of the minor in such instances, because his acquisition of the object is augmented by the involvement of an adult (the giver; דעת אחרת מקנה). As the Alter Rebbe proceeds to state, there are situations when the minor is considered to have acquired the object and others, when not.

I.e., he recognizes that it is worthless.

Because he appreciates its value. Such conduct indicates that the minor has attained at least a modicum of understanding.

From the contrast to the following clause, the Alter Rebbe’s choice of wording appears to imply that the child’s acquisition is valid according to Scriptural Law. Similarly, in Hilchos Hefker, subsection 8 below, he explicitly states that while a child acquires an ownerless object only by virtue of Rabbinic Law, he acquires a present given to him according to Scriptural Law. The rationale is that his legal power is amplified by the involvement of an adult, the giver.

Gittin 65a.

The stringent position to which the Alter Rebbe refers is the opinion of the Sifsei Kohen, Choshen Mishpat, 243:6, who differs with the position stated above, maintaining that there is no difference whether a child’s acquisition of property is supported by an adult’s consent or not. With regard to both the acquisition of an ownerless object and a present, if the child possesses the level of maturity described above, he acquires it according to Scriptural Law. The Sifsei Kohen notes that Gittin 59b indicates that a minor acquires an ownerless object only according to Rabbinic Law, but — to prevent that statement from contradicting his conclusion — he explains that this is referring only to a minor who has not reached the state of maturity described above.

A marginal note appended to the first printing of the Alter Rebbe’s text, cited in note 80 of the present edition, refutes the Sifsei Kohen’s argument by citing Bava Metzia 12a, which indicates that a child’s acquisition of an ownerless object is only of Rabbinic origin, although the passage speaks about a mature child.

Kesubos 98b.

The principal has a claim to the extra amount, because the gain came about because of his money. Similarly, the agent has a claim, because his efforts actually brought about the gain (Turei Zahav, Cho ­shen Mishpat 183:6). Since there is a doubt to whom it should be given, it is divided between them.

If, by contrast, the seller states explicitly that he is giving the extra amount to the principal, the agent does not receive a share in it (Ketzos HaChoshen 185:7).

If, however, the item has a fixed price and the agent succeeds in selling it for more, the additional profit should be divided between him and the principal.

As explained below in Hilchos Onaah, subsection 1-2, it is forbidden to buy or sell an article for more or less than its value. When the difference is more than a sixth, if both parties to the sale are Jewish, the sale is nullified and the money and the object must be returned.

As stated there (ibid.:11), the obligation to return the article or the money applies only when both parties are Jewish. Although it is forbidden to deceive a gentile regarding the value of merchandise, it is not forbidden to take advantage of an error the gentile makes on his own.

The remainder belongs to the agent.

See Hilchos Middos U’Mishkalos, subsection 2 below, which states that it is forbidden to trick a gentile and cause him to miscalculate with regard to the weights and/or measures involved in a business deal. Nevertheless, if the gentile errs on his own, it is not necessary to correct him.

Hence, since the extra money or merchandise was given to the agent, he is entitled to it in its entirety.

See Hilchos Metziah, subsection 38 below, which states that although one is entitled to keep an article lost by a gentile, if returning it will motivate the gentiles to praise the faithfulness of the Jewish people, it is desirable to do so.

That the agent has the right to an extra amount given in error by a gentile.

I.e., the agent received the desired amount of merchandise for a lower price than he should have paid.

I.e., the agent received the amount of money which the principal desired for less merchandise than he should have given.

Chagigah 10b.

See Hilchos Metziah U’Fikadon, subsection 38 below.

I.e., purchase the merchandise the principal gave him to sell.

I.e., sell his own merchandise to the principal.

A marginal note appended to the Alter Rebbe’s Shulchan Aruch states that even after an evaluation has been made by the court, there are still grounds for suspicions as the Alter Rebbe proceeds to state.

Imrei Yaakov states that this phrase was placed in parenthesis because the Alter Rebbe desired to reconsider the matter, for Sefer Meiras Einayim 175:3 rules that even if such a statement is not made, as long the principal establishes a fixed price, the agent may buy or sell the merchandise.

Imrei Yaakov (Biurim) gives the following reason why the principal must consent to the sale after the agent informs him of his desire to purchase or sell the merchandise: In addition to the suspicion the Alter Rebbe mentions, there is an added factor preventing the agent from participating in this transaction. Since he is acting as the agent of the principal, his domain is considered as an extension of the principal’s domain (see subsection 13). As such, when he buys the object he cannot bring that object into his own domain (Rashba, Rabbeinu Nissim to Kesubos 98b). Thus it is only by consulting with the principal concerning the transaction — in which instance, the principal retakes control over his property or money, as it were — that the transaction is completed.

Because similar suspicions could arise.

If a person passes away and leaves young orphans without appointing a guardian for them, the court should appoint a guardian to care for his estate until his children come of age (see Rambam, Hilchos Nachalos, chs. 10-11).

Bava Metzia 38b. See Hilchos Halvaah, subsection 18 above, which describes how such an evaluation should be made.

In such an arrangement, a portion of the money given by the lender/investor is offered as a loan and must be repaid regardless of what happens with the venture. The remainder is provided as an investment. The recipient must invest the money and the profits and losses from this portion belong to the lender/investor. The recipient must also be paid a small fee for his management of the investment. See Hilchos Ribis, subsection 36.

Gittin 52a.

As savings.

Sifri to Devarim 33:9, as quoted by Rashba, Vol. I, responsum 1094.

Kesubos 100b.

Kiddushin 59a.

Since the money remains the property of its original owner (see subsection 13), the agent is considered as acting on his behalf and the article exchanged for that money is acquired by the principal. The agent merely works on his behalf.