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Mechirah - Chapter 9

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Mechirah - Chapter 9

1The following rules apply when a person sells an article to the Temple treasury.1 If the representative of the treasury asks him: “How much are you selling it for?” and the person says: “Ten zuz,” even if it is worth 100,2 once he said ten he cannot retract.3 For making a promise to the Most High4 is considered equivalent to transferring the article in question to the possession of a colleague.5אהַמּוֹכֵר לְהֶקְדֵּשׁ, וְאָמַר לוֹ הַגִּזְבָּר 'בְּכַמָּה אַתָּה מוֹכֵר חֵפֶץ זֶה?' וְאָמַר 'בַּעֲשָׂרָה' - אַפִלּוּ הָיָה שָׁוֶה מֵאָה, כֵּיוָן שֶׁאָמַר 'בַּעֲשָׂרָה', אֵינוֹ יָכוֹל לַחֲזֹר בּוֹ; שֶׁאֲמִירָה לְגָבוֹהַּ כִּמְסִירָה לְהֶדְיוֹט.
2Whether a representative of the treasury buys or sells an article, he is always given the upper hand if there is a fluctuation in the article’s value. What is implied? If the representative paid with money from the Temple treasury,6 but did not perform meshichah on the produce, although the value of the produce increases, the Temple treasury nevertheless acquires the produce, as prescribed by Scriptural Law. If the value of the produce decreases, the Temple treasurer may retract, for he did not perform meshichah, and the legal power of an ordinary person should not be greater than that of the Temple treasury.7בהַגִּזְבָּר שֶׁקָּנָה לַהֶקְדֵּשׁ, אוֹ שֶׁמָּכַר - יָדוֹ עַל הָעֶלְיוֹנָה. כֵּיצַד? נָתַן דָּמִים שֶׁל הֶקְדֵּשׁ, אַף עַל פִּי שֶׁלֹּא מָשַׁךְ הַפֵּרוֹת: אִם הוּקְרוּ, קָנָה כְּדִין תּוֹרָה; וְאִם הוּזְלוּ הַפֵּרוֹת - חוֹזֵר, שֶׁהֲרֵי לֹא מָשַׁךְ, וְלֹא יִהְיֶה כּוֹחַ הֶדְיוֹט חָמוּר מִכּוֹחַ הֶקְדֵּשׁ.
Similarly, if the Temple treasurer sold an article that had been consecrated, the purchaser performed meshichah, but did not pay for it, and then the value of the article decreases, the transaction is finalized.8 For the legal power of an ordinary person should not be greater than that of the Temple treasury.9וְכֵן אִם מָכַר חֵפֶץ שֶׁל הֶקְדֵּשׁ, וּמְשָׁכוֹ הַלּוֹקֵחַ וְלֹא נָתַן דָּמִים, וְהוּזַל הַחֵפֶץ - קָנָה, שֶׁלֹּא יִהְיֶה כּוֹחַ הֶדְיוֹט חָמוּר מִכּוֹחַ הֶקְדֵּשׁ.
If the value of the article increases, the representative of the treasury may retract, for he did not accept payment, and consecrated articles may be acquired only through the payment of money, as implied by the verse:10 “And he shall give the money and it will be established as his.” The representative of the treasury is not liable to receive the adjuration mi shepara.11וְאִם הוּקַר הַחֵפֶץ - חוֹזֵר בּוֹ, שֶׁהֲרֵי לֹא לָקַח הַגִּזְבָּר דָּמִים, וְהַהֶקְדֵּשׁ אֵינוֹ נִקְנֶה אֶלָא בְּכֶּסֶף, שֶׁנֶּאֱמָר "וְנָתַן אֶת הַכֶּסֶף וְקָם לוֹ” (ראה ויקרא כז, יט; ויקרא כז, כג). וְאֵין הַגִּזְבָּר חַיָּב לְקַבֵּל מִי שֶׁפָּרַע.
3Property belonging to orphans12 under the age of majority is governed by the same rules as those governing the Temple treasury. What is implied? When orphans sell produce, and meshichah is performed on the produce, but they have not yet received the money for it, they may retract from the agreement if the value of the produce increases.13 For like consecrated property, property belonging to orphans can be acquired only through the transfer of money. If the value of the produce decreases the transaction should be allowed to stand. For the legal power of an ordinary person should not be greater than the legal power of orphans.14גנִכְסֵי יְתוֹמִים קְטַנִּים, הֲרֵי הֵן כַּהֶקְדֵּשׁ. כֵּיצַד? יְתוֹמִים שֶׁמָּכְרוּ פֵּרוֹת וְנִמְשְׁכוּ מֵהֶן הַפֵּרוֹת, וַעֲדַיִן לֹא לָקְחוּ הַדָּמִים, וְהוּקְרוּ הַפֵּרוֹת - חוֹזְרִין בָּהֶן, שֶׁאֵין נִכְסֵי יְתוֹמִים נִקְנִין אֶלָא בְּכֶּסֶף כְּהֶקְדֵּשׁ. הוּזְלוּ הַפֵּרוֹת, לֹא יִהְיֶה כּוֹחַ הֶדְיוֹט יָתֵר מִכּוֹחָן.
4Similarly, if orphans received payment, but meshichah was not performed on their produce before it increased in value, they may retract as may ordinary individuals.15 If, however, the value of the produce decreased and the purchasers desire to retract, they may do so, but they must receive the adjuration mi shepara, as would be the law with regard to others. They are allowed to retract because if we required them to keep the produce, as would be required by Scriptural Law, this would be a disservice to the orphans. For if this were the law, when the orphans desire to sell an object, they would never find anyone who would be willing to pay them money unless the object were handed over first.16דוְכֵן אִם לָקְחוּ הַדָּמִים, וַעֲדַיִן לֹא נִמְשְׁכוּ פֵּרוֹתֵיהֶן, וְהוּקְרוּ - חוֹזְרִין כִּשְׁאָר הַהֶדְיוֹטוֹת. אֲבָל אִם הוּזְלוּ הַפֵּרוֹת, וְרָצוּ הַלָּקוֹחוֹת לַחֲזֹר בָּהֶן - חוֹזְרִין, וּמְקַבְּלִין מִי שֶׁפָּרַע, כְּדִינָם עִם שְׁאָר הָעָם. שֶׁאִם נְחַיֵּב אוֹתָם לִקַּח הַפֵּרוֹת כְּדִין תּוֹרָה - הֲרֵי זוֹ רָעָה לַיְּתוֹמִים, שֶׁאִם יִהְיֶה דִּינָם כָּךְ, כְּשֶׁיִּצְטָרְכוּ לִמְכֹּר, לֹא יִמְצְאוּ מִי שֶׁיִּתֵּן לָהֶם דָּמִים.
5Similar principles apply if orphans purchase produce and perform meshichah on the produce, but have not yet paid for it. If the value of the produce increases, the legal power of an ordinary person should not be greater than their legal power. Therefore, the transaction should be allowed to stand.17הוְכֵן יְתוֹמִים שֶׁלָּקְחוּ פֵּרוֹת, וּמָשְׁכוּ הַפֵּרוֹת וְלֹא נָתְנוּ הַדָּמִים, וְהוּקְרוּ - לֹא יִהְיֶה כּוֹחַ הֶדְיוֹט גָּדוֹל מִכּוֹחָן.
If the value of the produce decreases, they are not allowed to retract. For this would be a disservice to them. If they were given this privilege, should they desire to purchase produce, they would not find anyone who would sell it to them before they made payment.18וְאִם הוּזְלוּ הַפֵּרוֹת - אֵינָן חוֹזְרִין, שֶׁזּוֹ רָעָה לָהֶם, כְּשֶׁיִּצְטָרְכוּ לִקְנוֹת פֵּרוֹת לֹא יִמְצְאוּ מִי שֶׁיִּמְכֹּר לָהֶם.
6If the orphans paid for produce but did not perform meshichah, and then the value of the produce decreases, they may retract,19 for the legal power of an ordinary person should not be greater than their legal power. If the value of the produce increases, the sellers may retract if they desire and receive the adjuration mi shepara. For if the law were that the orphans acquire the produce by the payment of money, the seller would tell them20 that the produce was destroyed by fire or another factor beyond human control after the produce entered their property, at the time payment was made.21ונָתְנוּ הַדָּמִים וְלֹא מָשְׁכוּ הַפֵּרוֹת, וְהוּזְלוּ הַפֵּרוֹת – חוֹזְרִין; לֹא יִהְיֶה כּוֹחַ הֶדְיוֹט גָּדוֹל מִכּוֹחָן. הוּקְרוּ - אִם רָצוּ הַמּוֹכְרִים לַחֲזֹר בָּהֶן, חוֹזְרִין וּמְקַבְּלִין מִי שֶׁפָּרַע. שֶׁאִם יִהְיֶה דִּינָם שֶׁיִּקְנוּ בִּנְתִינַת הַמָּעוֹת - יֹאמַר לָהֶם הַמּוֹכֵר 'נִשְׂרְפוּ הַפֵּרוֹת שֶׁלְּקַחְתֶּם' אוֹ 'אָבְדוּ בְּאֹנֶס', וּכְבָר נַעֲשׂוּ בִּרְשׁוּתְכֶם מִשְּׁעַת נְתִינַת הַמָּעוֹת.
7On four occasions during the year, our Sages restricted their enactments and applied Scriptural Law with regard to the purchase of meat,22 for on these days, all people need meat.23 The times are the day before Shemini Atzeret, the day before the first day of Pesach, the day before Shavuot and the day before Rosh HaShanah.24 What is implied? If a butcher had a steer that was worth even 100 dinarim, and he took one dinar from the purchaser in exchange for meat that he would slaughter, he cannot retract, even if enough money is not collected to pay for the entire value of the steer.25 Instead, the butcher is compelled to slaughter against his will. He is forcibly made to slaughter the steer and provide the purchaser with meat. For this reason,26 if the steer dies before being ritually slaughtered, the purchaser suffers the loss.27זבְּאַרְבָּעָה פְּרָקִים בַּשָּׁנָה, הֶעֱמִידוּ דִּבְרֵיהֶם עַל דִּין תּוֹרָה בַּבָּשָׂר, מִפְּנֵי שֶׁהָעָם כֻּלָּן צְרִיכִין לַבָּשָׂר, וְאֵלּוּ הֵן: עֶרֶב יוֹם טוֹב הָאַחֲרוֹן שֶׁל חָג, וְעֶרֶב יוֹם טוֹב הָרִאשׁוֹן שֶׁל פֶּסַח, וְעֶרֶב הָעֲצֶרֶת, וְעֶרֶב רֹאשׁ הַשָּׁנָה. כֵּיצַד? הָיָה לַטַּבָּח שׁוֹר, אַפִלּוּ שָׁוֶה מֵאָה דִּינָר, וְלָקַח דִּינָר אֶחָד מִן הַלּוֹקֵחַ כְּדֵי לִתֵּן לוֹ בָּשָׂר כְּשֶׁיִּשְׁחֹט, וְלֹא נִתְקַבְּצוּ לוֹ כָּל דְּמֵי הַשּׁוֹר - אֵינוֹ יָכוֹל לַחֲזֹר בּוֹ, אֶלָא מַשְׁחִיטִין אֶת הַטַּבָּח בְּעַל כָּרְחוֹ, וְכוֹפִין אוֹתוֹ לִשְׁחֹט וְלִתֵּן הַבָּשָׂר לַלּוֹקֵחַ; לְפִיכָּךְ אִם מֵת הַשּׁוֹר, מֵת לַלּוֹקֵחַ.

Quiz Yourself on Mechira Chapter 9

Footnotes
1.

Note that the Shulchan Aruch (Yoreh De’ah 258:13) and the Ramah (Choshen Mishpat 199:4) apply several of these principles with regard to pledges made to charity.

2.

If such a sale were conducted between two private individuals, it would be nullified, because of the laws of ona’ah, taking unfair gain. For, as explained in Chapter 12, whenever an article is sold for less than five sixths of its worth, the sale is nullified.

3.

Despite the fact that his commitment was not formalized with a kinyan or any act of contract.
The Kessef Mishneh explains that there are two dimensions to this concept:
a) that delineated by the Rambam in this halachah. In this instance, we can say that the person was giving a gift to the Temple treasury by selling the article for less than its worth;
b) an instance where the price of the article fluctuated, as delineated by the Rambam in the following halachah. In such an instance, even though the person did not desire to make a gift to the Temple treasury, he is bound by his commitment.

4.

I.e., God. For an article consecrated to the Temple treasury is ultimately dedicated to God.

5.

I.e., just as ownership of an object is transferred by its physical transfer to another colleague’s domain, so too, ownership is transferred to the Temple treasury by making a verbal statement alone.

6.

The Maggid Mishneh asks the following question: Since a promise to the Temple treasury finalizes the sale of an article, why is it necessary for money to have changed hands?
He quotes the opinion of the Ramban and Tosafot (Kiddushin 28b) that in such a situation, a promise is not sufficient, and indeed, if money has not changed hands, if the price fluctuates the seller may retract. [See Shulchan Aruch (Yoreh De’ah 258:13).]
He states that the Rambam would not necessarily accept such a distinction and explains that according to the Rambam, the difference is that when a promise is made, the commitment is binding merely according to Rabbinic Law. When money changes hands, by contrast, it is binding according to Scriptural Law.

7.

An ordinary person would have to receive the adjuration mi shepara in such a situation. Since that adjuration is not applied to the Temple treasury, the treasurer can thus retract without difficulty.
The Maggid Mishneh questions why the Temple treasurer is allowed to retract, citing Kiddushin 29a, which states that if a person gave money to the Temple treasury for an article, and then the value of the article increased, the Temple treasurer may not retract. The rationale is that in such an instance it would be appropriate for the adjuration mi shepara to be administered, and this is not appropriate for the Temple treasury. [Significantly, the Rambam himself quotes that law in Hilchot Arachin 7:12.] Seemingly, similar principles would apply in this instance, and since an ordinary person would be required to receive the adjuration mi shepara, the Temple treasurer should not be allowed to retract.
The Kessef Mishneh explains the Rambam’s decision, stating that the adjuration mi shepara is appropriate only when the sale of an article is completed by the transfer of money according to Scriptural Law. This does not apply when an article is purchased by the Temple treasury. In such an instance, the article must be physically transferred for the change in ownership to take effect. Therefore, if the treasurer retracts, the adjuration mi shepara is not appropriate.

8.

Even according to Rabbinic Law, the sale of a consecrated article is finalized only through the transfer of money. Nevertheless, in this instance the person is obligated to carry out the transaction for the reason stated by the Rambam.

9.

If the transaction involved an ordinary person, it would be finalized through meshichah, and it would be impossible to retract. Therefore, that same rule is applied to a transaction involving the Temple treasury.

10.

There is no exact verse using the wording the Rambam cites. Commentaries have cited Leviticus 27:19: “And he shall add... the money and it will be established as his.” [Significantly, the Rambam’s words are a direct quote from Kiddushin 29a.]

11.

An ordinary person would also not be required to receive the adjuration mi shepara under such circumstances. For meshichah finalizes a transaction, but never obligates the adjuration mi shepara. There are commentaries that suggest that placing this phrase here is a printing error, and its true position is at the end of the first clause of this halachah.
Further details with regard to the sale and purchase of property by the Temple treasury are found in Hilchot Arachin, Chapter 7.

12.

This refers to orphans below the age of majority. Indeed, the Maggid Mishneh and several authoritative manuscripts of the Mishneh Torah include this concept in the Rambam’s words.

13.

This is the only situation in which the laws applying to orphans differ from those applying to other individuals.

14.

Hence, just as in a transaction conducted with an ordinary person, the purchaser may not retract because the transaction is finalized through meshichah, so too, he may not retract in a transaction involving orphans. The principle “property belonging to orphans can be acquired only through the transfer of money” was instituted for the orphans’ benefit, not for their harm (Tur, Choshen Mishpat 199).

15.

In this situation, in contrast to others, however, the orphans are not required to receive the adjuration mi shepara for retracting. See Chapter 29, Halachah 8 and the gloss of the Maggid Mishneh.

16.

The bracketed additions are made on the basis of the Tur (loc. cit.).

17.

For it was finalized through meshichah.

18.

One might say that they should be given this privilege, because according to Scriptural Law the transaction was not finalized. Nevertheless, they are not granted this privilege for the reasons the Rambam explains.

19.

The orphans are not, however, required to receive the adjuration mi shepara for retracting, as others would.

20.

I.e., we fear that the seller will lie and say the property was destroyed rather than take the loss.

21.

Rashi (Gittin 52b) asks: Let us say that with regard to this factor, the produce will be considered to be remaining in the domain of the seller. Thus, if the seller claims that the object was destroyed, the orphans will not suffer a loss. He explains that since with regard to the profit, the transaction is considered to be completed, it cannot be considered to be unfinished with regard to the possibility of loss.
This principle does not apply with regard to the sale of consecrated property. For the responsibility for the article is always the seller’s. Thus, he is not given the potential to retract even if the price rises (Lechem Mishneh).

22.

And thus, it is the transfer of money and not the transfer of the meat that completes the purchase.

23.

The Ramah (Choshen Mishpat 199:3) states that similar principles apply with regard to a person who seeks to purchase wine on Friday. For at that time, wine is required by all.

24.

The commentaries on Chulin 83b (the source for this halachah) explain that the meat is not as important a commodity on the first day of Sukkot, since the people are busy preparing their lulavim and sukkot, and they are therefore unable to be occupied with procuring and preparing meat. And the last day of Pesach is not considered to be as important a holiday as the others, as reflected in the fact that there was not a separate sacrificial offering designated for it.

25.

It was rare that a single client would purchase an entire steer for meat. Instead, a butcher would divide an animal among several clients. In this instance, there were several clients who had purchased meat, but not enough to warrant the slaughter of an entire steer.
In that era there was no refrigeration, and meat would spoil if left unused. Therefore, the butcher would stand to suffer a substantial loss in such a situation. Nevertheless, because of the need for meat, our Sages required that he adhere to the requirements of Scriptural Law and deliver the meat he promised.

26.

I.e., because the transaction is considered to be completed, and the animal is considered as being the property of the purchaser(s).

27.

I.e., the butcher is allowed to keep the money that was given him.

The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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The text on this page contains sacred literature. Please do not deface or discard.