Rambam - 3 Chapters a Day

The rationale for this ruling is that property could be bought easily in the Talmudic era. Hence, our Sages felt that just as a purchaser could buy property in one place, he could also buy it in another. Therefore, they gave a neighbor – who might never have the chance to buy the property that borders on his – the opportunity to displace the purchaser and join the property to his own fields. This rationale does not apply with regard to the recipient of a gift, for it is not likely that he will be given property as a gift again. And the giver can justifiably say that he would like to give the property to the intended recipient and not to the neighbor.
Nor would reimbursing the recipient financially for the gift be sufficient. For both the giver and the recipient desire that the property given remain in the recipient’s hands, so that there be a remembrance of the giver’s kindness and the close relationship between the two (Sefer Me’irat Einayim 175:101).

It is not common for a person to accept financial responsibility for a present. After all, the recipient has nothing to lose. There is no reason for the giver to accept such responsibility. Hence, we assume that deception is involved (Ibid.:102).

Ordinarily, the neighbor must pay the amount stated in the deed of sale, but that does not apply in this instance. See also the following halachot for the clarification of this matter.

I.e., tefillin or a Torah scroll, as stated in Hilchot To’en V’Nit’an 1:2.

See Hilchot Sh’luchin V’Shutafin 9:1, which states that our Sages ordained that an agent must take an oath that he acted justly on behalf of the principal. Since, as stated in Chapter 12, Halachah 5, the purchaser is considered the agent of the neighbor, he must take such an oath before receiving payment.

This expression refers to a conclusion reached by the Rambam through his independent reasoning and not based on an explicit Talmudic source.

For we assume that a person would not pay an exorbitant price for a property. Although we generally accept a person’s oath as true, the likelihood that a person would not pay an exorbitant price for a property is so great that in such an instance we do not give the purchaser the option of supporting his claim with an oath (Maggid Mishneh).
The Beit Yosef (Choshen Mishpat 175) notes that in Chapter 14, Halachah 4, the Rambam rules that if the purchaser paid 200 zuz for a property worth 100, the neighbor must pay the full price, provided the purchaser supports his claim with an oath. Nevertheless, he explains that there is not necessarily a contradiction between the two rulings. In the later chapter, there is no question that the purchaser did in fact pay the exorbitant price. The only question is whether he and the seller arranged that he pay such a price to compel the neighbor to pay it and then divide the profits between themselves. In the case described in this halachah, by contrast, the purchaser already showed his dishonesty (by drawing up a deed saying the sale was a gift). Therefore, we look askance at his claim to have paid an exorbitant price and do not give him the opportunity of supporting that claim with an oath.

Although the price is exorbitant, no one is compelling the neighbor to pay it. He may leave the field in the possession of the recipient. In contrast to the previous halachah, in this instance, the neighbor must pay the full price, because there is no admission of fraud.

From the fact that a courtyard is mentioned, the Maggid Mishneh derives that – in contrast to an exchange – in ordinary purchases involving homes, a neighbor is given the right to displace the purchaser. See Chapter 12, Halachot 16-17 and notes.

For the owner of each of the courtyards may claim that they do not desire anything else, only the other courtyard in return for their courtyard (Maggid Mishneh).
In his Kessef Mishneh, Rav Yosef Karo quotes the Tur, who states that the Rambam’s ruling applies only when a courtyard is offered in return. When a field or an orchard is offered in return, if the neighbor can give the seller as good a field or orchard as the purchaser, the neighbor has the right to displace him.
Rav Yosef Karo himself does not accept this conclusion, explaining that just as it is possible for a person to have individual preferences when it comes to a courtyard, so too, he may have an individual preference when it comes to a field or an orchard. Therefore, in his Shulchan Aruch (Choshen Mishpat 175:24), he quotes the Rambam’s ruling. Even the Ramah – who often follows the rulings of the Tur – accepts the Rambam’s ruling.

I.e., an attempt to prevent the neighbor from exercising his right.

Since the purchaser was given the worth of the article or animal, we assume that he will be able to find another one in the market place to replace the one he used for the exchange (Sefer Me’irat Einayim 175:41).

The commentaries question what would be the ruling when the first sale involved a large portion of property, but it still did not border on the neighbor’s field and the second sale involved a smaller property that did.

Since the field that is sold is surrounded by the person’s other fields on all sides, none of the neighbors has the right to displace the purchaser from the property.

Through the purchase of the small portion of the land, the purchaser insures that a neighbor will not be able to displace him from the larger portion of land. For as the Rambam proceeds to explain, the purchase of the small portion of land makes him a neighbor, and one neighbor does not have the right to displace another one. Nevertheless, using the principle the Ram bam mentions, the court tries to verify that the purchase of the small portion of land was not merely a ruse to enable him to maintain possession of the larger portion.

If the small portion of land purchased first is of greater or lesser value than the portion of the land purchased afterwards, it can be explained that it was purchased because of its intrinsic value. Therefore, the sale of the second portion is not annulled.
If, however, there is no difference in quality between the first property and the second property, we assume that the property was sold in this manner only to prevent the neighbor from exercising his right. Therefore, the neighbor is granted the option of purchasing the property (Sefer Me’irat Einayim 175:47).

The Ramah (Choshen Mishpat 175:28) states that when there is suspicion that the sale was conducted as a ruse, the neighbor can have the court issue a warning of a ban of ostracism against those who try to circumvent the rights of the neighbor.

The first portion of the property was sold only so that the purchaser is considered a neighbor.
The Ramah (Ibid.) states that the same law applies if a person gives a colleague a present of landed property and then sells him landed property next to it at a price higher than the ordinary. We suspect that he gave him the land as a present only so that he would also be called a neighbor, and then the neighbor would not be able to displace him. Later, when he purchased the second portion of property, the purchaser reimbursed the seller through the exorbitant price.

The Tur (Choshen Mishpat 175) adds that the neighbor is not obligated to warn the purchaser not to purchase the larger property.

From the Rambam’s words, it appears that the first sale remains binding, and the purchaser is not forced to give up that property. Even if the purchaser paid an unusually large amount for the first property and a lesser price for the second property – an indication that the two sales are one – the neighbor is not required to purchase the first property from the purchaser (Sefer Me’irat Einayim 175:48). The Sefer Me’irat Einayim, however, also quotes the opinion of the Tur who offers a different interpretation.

This applies even if the neighbor agrees to fulfill all the conditions stipulated by the seller. For the seller may claim that he trusts the purchaser more than the neighbor and would rather rely on him to fulfill his commitment.

For until then, the sale is not completed and the property does not belong to the purchaser.

In his Kessef Mishneh [and this position is reflected in his Shulchan Aruch (Choshen Mishpat 175:30)], Rav Yosef Karo explains that this ruling applies only when the neighbor protests as soon as he sees the purchaser building. Otherwise, the fact that he does not protest is interpreted as acceptance of the purchaser’s ownership.

As explained in the later clauses of the halachah. If the value of the property increases or decreases because of market fluctuation and not because of the purchaser’s actions, the purchaser should be paid the purchase price, no more and no less (Shulchan Aruch [Choshen Mishpat 275:6)].

We do not say that is as if the purchaser owned the property and then sold it to the neighbor, in which instance he would be entitled to a greater return for the improvements he made. Instead, it is considered as if he purchased the property on behalf of the neighbor and he was making those improvements without his knowledge.

Usually, all the property a person owns is considered to be on lien to one’s creditor. Even if the property is sold afterwards, the creditor may expropriate it. Hence, in this situation, one might think that the purchaser’s creditor might be entitled to expropriate the property from the neighbor.

I.e., in this instance as well, it is not considered as if he owned the property and then sold it to the neighbor. Instead, it is considered as if he purchased it on behalf of the neighbor. Hence, his own creditor never established a lien to it.
Note Sefer Me’irat Einayim 175:11, which rules that even if the neighbor has already reimbursed the purchaser, the creditor of the purchaser does not have any claim against the neighbor.

See Hilchot Sh’luchin V’Shutafin 1:2, where this principle is cited.

These are the laws that govern a situation in which a person uses property belonging to a colleague without his permission, as stated in Hilchot Gezelah Va’Avedah 10:4. Although the increase in the property’s value is more than the expenses the person undertook, he is reimbursed only for his expenses. And if the increase in the property’s value is less than the expenses, he is reimbursed only for the increase.
The Shulchan Aruch (Choshen Mishpat 175:6) differs and maintains that if the improvements were made before the neighbor claimed the property, the purchaser must be reimbursed for the full measure of the property’s increase in value.

Because with his actions, he impaired the neighbor’s position.

For until the neighbor claims the property, it is considered to belong to the purchaser (Maggid Mishneh).
Based on this ruling, the Or Sameach concludes that the analogy to an agent is not entirely appropriate.

The Maggid Mishneh states that he does not know the source for the rulings in this or the following two halachot. With regard to this halachah, Sefer Me’irat Einayim 175:22 draws a comparison to the law mentioned in Chapter 12, Halachah 6, concerning a person who sells all his property to one purchaser.

For each sale is a separate transaction.

I.e., to the purchaser. This is the version in the standard printed texts of the Mishneh Torah. According to authoritative manuscripts and early printings – and this version is borne out by the statement of the law in the Tur and the Shulchan Aruch (Choshen Mishpat 175:15) – the term meaning “to him” is omitted, implying that any sale of his property prevents him from exercising his right.

For he is no longer the owner of the bordering property. Moreover, even the purchaser who purchased this property does not have the right to displace the purchaser of the first property [Shulchan Aruch (Ibid.)].

See Chapter 14, Halachah 2 and notes.

As payment for an outstanding debt.

Who exercised his right to displace the purchaser.

The price he paid.

As mentioned previously, although the purchaser is considered merely the agent of the seller – and thus, the neighbor should not have any claim against him, the analogy of an agent is not entirely applicable, and with regard to this particular situation, the purchaser is considered as having sold the property to the neighbor (Maggid Mishneh).
In his Kessef Mishneh, Rav Yosef Karo takes issue with the Rambam and explains that this ruling applies only in a situation where the seller has funds or property to give the purchaser. If he does not, it is appropriate to require the seller to absorb the loss when he had no potential to benefit at all from this transaction.
In his Shulchan Aruch (Choshen Mishpat 175:21), Rav Yosef Karo quotes the Rambam’s view without making this qualification, but also mentions the view of Rabbenu Asher and the Tur, who differ and maintain that the neighbor must seek reimbursement from the seller alone. The Ramah states that this view should be followed.

This law applies whether the property was expropriated by the court in payment of the debt or given voluntarily by the debtor to the creditor as payment [Shulchan Aruch (Choshen Mishpat 175:20)].

For ultimately the creditor is not entitled to anything more than the repayment of the debt owed him.

This law applies only if the property was expropriated by the court. If it was given to the creditor voluntarily, the owner may not redeem it (Sefer Me’irat Einayim 275:33, based on Hilchot Malveh V’Loveh 22:17).

See Hilchot Malveh V’Loveh 22:16, which explains that the owner of a property that was expropriated can redeem that property by paying his debt.

The Meiri explains that this refers to a minor who is orphaned.

See Chapter 12, Halachah 5.

For the court is enjoined to take whatever steps are necessary to protect the rights of a minor (Gittin 52b).

This applies both to property that is classified as nichsei m’log and to property that is classified as nichsei tzon barzel.

Our Sages (Ketubot 95b) deemed him a purchaser of his wife’s property. Therefore, the privilege is his and not hers, and she cannot waive the privilege on his behalf (Sefer Me’irat Einayim 175:23).

Note the parallel in Hilchot Mechirah 30:2-3.

For the seller cannot be forced to suffer the inconvenience of waiting for the money. Offering the neighbor the option of purchasing the property is itself a favor and need not cause the seller discomfort.

For such a minor delay is not considered a matter of substance.

The Shulchan Aruch (Choshen Mishpat 175:25) states that when the neighbor did not know of the purchase price before he was called to court, he is given the chance to go home and bring funds even if we would not presume that he has such resources at hand.

I.e., this is not referring to an instance where there is a difference in the monetary value of the coins. It is merely that the purchaser’s money possesses a slight advantage in the eyes of a money trader. (To state the matter in contemporary terms: The purchaser was prepared to pay for the property in American dollars, while the neighbor was prepared to pay in Israeli shekels. Even when the value is the same, the seller may prefer receiving payment in dollars rather than shekels.) The seller is not required to subject himself to even such discomfort to afford the neighbor the opportunity of purchasing the property.

The Beit Yosef and the Ba’er HaGolah (Choshen Mishpat 175:26) explain that this law applies even in the diaspora. The Or Sameach states that this is reflected in a comparison to the Rambam’s wording in Chapter 6, Halachah 2, where he explicitly mentions “the settlement of Eretz Yisrael.”
Sefer Me’irat Einayim 175:43 explains that we are ordinarily not concerned with regard to the settlement of the land in the diaspora. Here, however, the intent is that the property will be of more permanent benefit to the purchaser than to the neighbor, and therefore it is granted to him.

As stated in Chapter 13, Halachah 10, if the neighbor himself serves as the agent who makes the sale, he forfeits his rights. In the instance described here, he can claim that he did not think that the sale would actually take place, and hence did not mention his desire to purchase the property. Alternatively, he can explain that he felt that the purchaser could negotiate a better price than he would himself (Sefer Me’irat Einayim 175:50).

Note the Rambam’s statements in Hilchot Mechirah 5:14, where he explains that kinyanim that involve mere promises are not substantial and therefore not legally binding. Nevertheless, in this instance, since the neighbor does have rights to this property, the kinyan is considered to be of substance and binding (Ibid. :51).

When citing this law, the Shulchan Aruch (Choshen Mishpat 175:29) quotes the Rambam’s words, but adds another opinion that states that if the neighbor explicitly waives his rights in the presence of witnesses, he is no longer given the opportunity to exercise them.

Through such activities, he clearly acknowledges the purchaser as the owner of the property.

In which instance, had he a genuine interest in the property, he would have protested the changes being made to it.

Surely, this law applies if he makes a verbal statement that he does not desire the property and then decides to retract the statement.
In his gloss on Bava Metzia 108a, Rabbenu Asher writes that from the Rambam’s words, it appears that if the neighbor does not see the purchaser using the land and therefore doe not protest, he can exercise his right to displace him at a far later date. Rabbenu Asher does not accept this conclusion. The Kessef Mishneh takes issue with Rabbenu Asher, explaining that – as is obvious from the following halachah – this surely was not the Rambam’s intent. Instead, even the Rambam agrees that the protest must be made within a reasonable time after the sale.

And therefore was unable to protest the sale and displace the purchaser at the time the property was transferred.
With regard to a minor, based on Chapter 13, Halachah 13, we are forced to say that we are speaking of an instance in which the court did not see the purchase as of benefit to the minor.

See also the responsa of the Maharam Alshacar, Responsum 118, which quotes a responsum of the Rambam that states that if a neighbor was in the city at the time a property was sold, but did not respond, and afterwards claimed that he did not know about the sale, his claim is not heeded. We assume that he would have heard about the sale from the local gossip and would have protested if he truly desired the property. There are, however, other opinions that do not accept this ruling.
Note also the ruling of the Ramah (Choshen Mishpat 175:34), which states that when a person desires to sell a property, he should announce the matter in court, and the court should arrange that the neighbor be notified to prevent any misunderstanding from arising.

And he would not desire to invest in property that he could not be sure would remain his.

100 zuz.

He is selling the property at a low price because he is in urgent need of funds [Shulchan Aruch (Choshen Mishpat 175:7)].
If there is a dispute between the purchaser and the neighbor whether or not the seller would have sold the property at such a price to others, the burden of proof is on the neighbor [Shulchan Aruch (Choshen Mishpat 175:7)].

The term “gift” is not being used in its halachic context, for, as stated in Chapter 13, Halachah 1, a neighbor is not given the right to displace the recipient of a gift.

As stated in Hilchot Mechirah 13:5, according to the Rambam – despite the unfair nature of the sale – it is binding because the laws of ona’ah do not apply with regard to landed property.
The commentaries cite this law as an indication that description of the purchaser as the neighbor’s agent is not a hard and fast rule. For, as stated in Hilchot Sh’luchin V’Shutafin 1:2, when an agent errs, the transaction he carried out is nullified, and yet in this instance the sale is binding. The rationale is that the purchaser was, in truth, buying the property for himself, and he desired that his purchase remain binding.

And, as the Rambam continues to explain, the seller will return the additional funds.

The Sefer Me’irat Einayim 175:15 raises a question whether the neighbor can require that the oath be taken even if he merely suspects – but is not certain – that deception was perpetrated. The Siftei Cohen 175:8 maintains that the neighbor must be certain that deception was involved to require an oath.

A Torah scroll or tefillin.
The Maggid Mishneh compares this situation to one described in Hilchot Malveh V’Loveh 13:3, where a lender who was given security for his loan desires to sell the security to collect payment. He is required to take an oath holding a sacred article because he is not making a claim concerning the value of the security, but rather concerning the size of the loan. Here too, the purchaser is not endeavoring to clarify the value of the property, but instead, the price that he paid for it.

Our translation is based on authentic manuscripts of the Mishneh Torah and the text cited by the Shulchan Aruch. The meaning of the wording in the standard published texts of the Mishneh Torah is difficult to comprehend.
The Maggid Mishneh cites a different version of the Mishneh Torah in which the text reads “even if the neighbor does not know.” I.e., the neighbor can require an oath even when he is not certain. The rationale is that it is unlikely that the person purchased a property for twice its value.

I.e., he paid him back the other 100 on a later occasion.

A less severe oath that does not require that a sacred article be held. Since there are witnesses, the oath he takes is of lesser severity.

But his property does not border on it.

This is one of the ways in which honor is given to a Torah scholar.

We have used this translation because throughout the text we have used the term “neighbor” to connote a person who e property borders on the property being sold. According to some authorities, living in physical proximity is, however, not sufficient to cause one to be given these privileges. Instead, the two must be close in a personal sense as well [Ramah (Choshen Mishpat 175:50)].

In this context, Bava Metzia 108b quotes Proverbs 27:10, “A close neighbor is preferable to a far-away brother.”

This follows the same principle and logic motivating the rights given a neighbor.

Note Sefer Me’irat Einayim 175:91, which quotes certain authorities who grant a Torah scholar the right to displace the purchaser, and questions why this view was not cited by Shulchan Aruch or the Ramah.

As our Sages comment (Kiddushin 41a): “A man’s agent is equivalent to him himself.”
Note Rav Yosef Engel (Lekach Tov and Likkutei Sichot, Vol. XII), which offer three different interpretations of this statement:
i) that the agent is considered a separate entity, but his deeds are considered as if they were performed by the principal;
ii) that the agent is considered to have carried out his activities with the power vested in him by the principal;
iii) that the agent is considered an extension of the principal’s person; he is his “extended arm.” As Likkutei Sichot, loc. cit., explains there are situations in Torah law in which each of these definitions is applied.

See the conclusion of Chapter 5 of Hilchot Mechirah, which explains that there are certain times when a kinyan is unnecessary, but is performed to show the seriousness of the people involved, and other times when it is entirely unnecessary.

As our Sages comment (Kiddushin 65b): “Witnesses were brought into being only because of liars.”
This applies with regard to an agency that involves financial matters. When, by contrast, an agent is appointed to accept a bill of divorce or act on the part of a woman in her consecration, witnesses must observe the appointment (Hilchot Ishut 3:15).

Note the statements of the Ramah (Choshen Mishpat 182:1) who comments on this law: “Therefore, when a person tells a colleague: ‘Purchase this merchandise, and I will be your partner,’ if the colleague purchased it, [the person who made the suggestion] may not retract, for his colleague has already become his agent.”

For he is not carrying out the agency with which he is charged. See Halachot 4-5, and Chapter 2, Halachah 4.

And accidentally cause the principal a loss.

I.e., when appointing the agent, the principal did not intend that the agent would not act to his benefit. Hence, he can claim that the agent was never given authority to perform the actions that harmed his position.

See Hilchot Mechirah, Chapter 12.

Ibid. 13:8.

For the agent has erred and has not acted in the best interests of the principal.

See Hilchot Mechirah 19:3, which explain this concept. As stated in that source, a property is sold without financial responsibility only when the deed of sale explicitly states that. If the subject is not mentioned at all. we assume that the seller did accept financial responsibility (Kessef Mishneh).

For if the property is expropriated, the seller will be left without anything.

Sefer Me’irat Einayim 182:10 states that a new transaction is not necessary, despite the ruling of some authorities that requires a new transaction to be carried out.

In his Kessef Mishneh [and this interpretation is reflected in his Shulchan Aruch (Choshen Mishpat 182:6)], Rav Yosef Karo explains that the understanding of this halachah is dependent on the ruling of the Rambam in Chapter 2, Halachah 4 where the Rambam states that when an agent entered into a transaction and told the other party that he was merely an agent, the transaction is nullified if the agent violates the instructions of the principal. If, however, the agent does not inform the other party to the transaction that he is merely an agent, the agent must bear the responsibility for the transaction himself and then complete his dealings with the principal.
The sale mentioned in our halachah involves an instance where the agent did not inform the seller that he was merely an agent. Hence, he must bear the responsibility for the transaction. The Kessef Mishneh notes that Rabbenu Nissim does not require the principal to accept the property from the agent. Instead, the principal can require the agent to return his funds to him. This law applies only when the principal desires for the transaction to stand. (Rabbenu Nissim’s interpretation is quoted by the Ramah.)
The Kessef Mishneh, by contrast, maintains that since the agent accepts responsibility for the property, the principal is required to accept it. As he explains: What difference does it make to the principal whether the seller or the agent is responsible for the property?

If, however, the agent purchased the property with his own funds, he would not be forced to sell it to the principal (Sefer Me’irat Einayim 182:11; see also Hilchot Mechirah 7:10). The Tur and the Ramah (Choshen Mishpat 182:6) quote the view of Rabbenu Asher who maintains that even if the agent purchased the property with the seller’s money, he has the option of returning the money to the seller and keeping the property for himself.
It must, however, be noted that Rabbenu Asher interprets Bava Batra 169b, the source for this halachah, differently from the explanation above, stating that it refers to a situation in which the agent explicitly said that he was purchasing the property on behalf of the principal.
The Ra’avad introduces another perspective and maintains that everything depends on the principal. It is he who has the option of deciding whether to accept the agent’s action or not.

Shulchan Aruch (Choshen Mishpat 182:3) quotes this clause after quoting the conclusion of Halachah 2. See also Sefer Me’irat Einayim 182:7, which states that this clause applies only when the principal did not give the agent specific instructions. If he did give specific instructions, and the agent willfully violated them, the principal is not required to accept his actions.

Since acting as an agent may require a person to accept a large degree of financial responsibility, there may be many who refrain from doing so. To eliminate the agent’s risk and thus encourage someone to accept this position, the principal may make a stipulation of this nature.

For any conditional agreement involving financial matters that a person willingly undertakes is binding, even if it diminishes the privileges the Torah would grant him.

I.e., if the agent was working for a fee, he must be paid that fee even though he caused the principal a loss.
Note the Shulchan Aruch (Choshen Mishpat 182:4), which cite the opinion of the Ramah, who maintains that unless it is proven to the contrary, if the seller claims that the agent was appointed with the stipulation that his deeds are binding, the seller’s claim is accepted. Sefer Me’irat Einayim 182:8 explains that this applies only when the agent does not receive a fee.

I.e., 2500 square cubits.

But not to have violated them.

The purchaser may not acquire more property than the seller wishes to sell. Nevertheless, the transaction is not nullified entirely, for the seller desired to sell a portion large enough to sow a se’ah, and the purchaser was willing to buy such a property. If, however, the seller states: “I do not desire to purchase a field smaller than the area necessary to sow two se’ah,” he may nullify the transaction [Shulchan Aruch (Choshen Mishpat 182:8)].

It can be assumed that if the seller directed the agent to sell the area necessary to sow two se’ah, the reason was that he needed the amount of funds that could be garnered from that sale. Hence, if only half the amount of land was sold, he will have to sell the other portion to another person. He will certainly view this as undesirable, for it will increase the amount of legal activity in which he will be forced to be involved. Hence, this is considered a violation of his instructions (Sefer Me’irat Einayim 182:16).

For if the seller desires. the transaction is nullified, as stated in Halachah 2.
Ketubot 99a leaves this matter as an unresolved question. The Rambam, nevertheless, rules in favor of the owner of the property, for the property was in his possession previously. Therefore, he is given the benefit of the doubt (Kessef Mishneh).

Even though the agent could still sell the remainder of the property, doing so would require (he seller to enter into more than one transaction. As evident from his instructions, he did not desire to do that.
The Tur and the Ramah (Choshen Mishpat 182:10) maintain that this ruling applies only when it is necessary to compose two deed of sale. If both purchases are included in the same deed of sale, they are binding. It is clear that Rabbenu Yitzchak Alfasi, the Rambam’s teacher, would not accept this interpretation for there are other considerations involved in entering into two ales aside from the bother of composing another bill of sale.

Although a person generally does not desire the trouble of entering into many business transactions, since the principal did not make an explicit stipulation to the contrary, the agent’s activity is binding.
When quoting this law, the Shulchan Aruch (Choshen Mishpat 182:11) also mentions the opinion of Rabbenu Tam, who maintains that this applies only when the seller himself is not required to prepare the deeds of sale for the purchasers, and all the purchases are included in the same deed of sale, or the agent composes and signs the deeds of sale. If the seller must sign the deeds of sale himself, he has the right to nullify the transactions.

Even if the fact that the purchase was not made caused the principal a substantial loss, the agent is not liable. The commentaries differentiate between damaging a person’s property - where one person causes a colleague a loss and is therefore liable – and preventing him from earning a profit, when he is not.

This law would certainly apply when the principal’s intent was to use the wheat for food, for the agent obviously deviated from his instructions. The Rambam is teaching us that even when the principal intended that the wheat be purchased as merchandise, in which instance he might be content with the barley – because ultimately he is concerned merely that a profit be made – since the agent deviated from his instructions, the responsibility is the agent’s.

As mentioned in Chapter 2, Halachah 4, when an agent deviates from the principal’s instructions and does not say that he was an agent, he must bear the loss himself.

Because it was with his money that the profit was made.

The Tur (Choshen Mishpat 183) quotes the opinion of Rabbenu Tam, who explains that this ruling applies when the seller intentionally gives the additional measure as a gift. If, however, a gentile seller errs and adds more, the additional measure should be given to the principal. The Shulchan Aruch (Choshen Mishpat 183:6) quotes other views, which state that the additional measure should be given the agent.

Rashi, in his commentary on Bava Kama 102b, the source for this halachah, explains that we do not know whether the sellers gave the agent the additional amount because of their consideration for him, or because of their consideration for the principal. Hence, because of the doubt, the additional measure is divided between them.
From the Rambam’s wording, however, it appears that even if it is obvious that the measure was added because of the agent, the principal is also given a share. For had the principal not given the agent the funds with which to do business, he would never have been granted the extra measure (Kessef Mishneh).

For as above, the profit was made with his resources.

The Hebrew term sechirut applies both to a wage paid for work and also a fee for the hire of an article.

By not taking this precaution, the agent caused the principal to have to pay a second time.

If, by contrast, the payment was made in the presence of witnesses, even if the agent did not retrieve the promissory note, he could always prove that the debt had been paid.

The agent’s act is clearly negligent, for as long as the creditor has the promissory note in hand, he is entitled to demand payment. By mentioning the importance of taking the promissory note, the debtor informed the agent that he feared the possibility that he would demand payment a second time. It was thus the agent’s responsibility to secure the return of the promissory note (Kessef Mishneh).

In his Kessef Mishneh, Rav Yosef Karo states that if the debtor does not mention the promissory note, the agent is not held liable if he does not secure its return. And in his Shulchan Aruch (Choshen Mishpat 58:1), he goes further and states that even if the debtor told the agent that there was a promissory note, as long as he did not instruct him to bring it, the agent is not liable.

The debtor, the creditor and the agent.

I.e., the claim against the agent is that he did not pay the debt, but instead took the money for himself. The agent denies this claim entirely. Hence, like anyone who denies a claim entirely, he is required to take a sh’vuat hesset, a Rabbinic oath, to support his claim.

There are questions with regard to the correct version of the Rambam’s words. The standard printed text of the Mishneh Torah states “a Scriptural oath” in brackets. The Kessef Mishneh maintains that this was the correct version of the text. In many authoritative manuscripts and early printings of the Mishneh Torah, the text states “should take a sh’vuat hesset.”
From a halachic perspective, neither of these versions is entirely correct. Instead, the creditor is required to take sh’vuat hamishnah, an oath resembling a Scriptural oath in all of its particulars, and it must be taken while holding a sacred article, but it was instituted by the Rabbis and not required by Scriptural Law. See Hilchot Malveh V’Loveh 16:5.

The principal is caught in a double bind. For he has no proof of his claim in either of these cases. Therefore, he can do no more than require an oath from each of the parties. The oath taken by the agent is of no consequence with regard to the creditor’s claim against the principal, because the creditor can say: “I never entered into any business dealings with the agent. I did not agree to accept his word.”

And thus, we might assume that they would be considered to be two witnesses and their testimony accepted.

I.e., they have a vested interest in the case, and therefore their testimony is not accepted (Hilchot Edut, Chapter 15).
What is their vested interest? That, as the Rambam explains, if their testimony were accepted, they would not be required to take a sh’vuat hesset. Once they have taken the required oath, their testimony is still not accepted. For testimony that would not be accepted without an oath is never accepted once an oath has been taken.

In the case above, the principal did not have a definite claim against the agent. Nevertheless, an oath is required because his claim is supported by the statements of the creditor, who claims that he did not receive payment.

With the exception of oath taken by watchmen or partners, an oath cannot be required unless the plaintiff has a definite claim against the defendant – i.e., he is certain that the defendant owes him something. In this instance, the creditor is not certain that the agent did not perform his mission. Quite the contrary, in general, we assume that the agent did perform his mission. See Hilchot To’en V’Nit’an 1:7.

I.e., the court issues a statement that anyone who demands payment a second time for money he has been paid is fit to be placed under a ban of ostracism. This statement is not directed against the creditor personally, and yet it is intended to serve as a warning to him.

For he has no proof that the agent paid him. Thus, this resembles a situation where he knows that he is liable for the debt and is uncertain if he paid the creditor. He is liable in such an instance as stated in Hilchot To’en V’Nit’an 1:9.

See the Kessef Mishneh, which discusses the law that applies when the creditor does not identity a specific agent.

As the Rambam states in Chapter 3, Halachah 5, even if the debtor knows that the agent was appointed by the creditor, he may not be compelled to give him the money he owes.

Since “a person’s agent is considered as the person himself,” giving the money to the agent is equivalent to giving it to the creditor himself. Even if the money never reaches the creditor, the debtor has discharged his obligation by paying the agent.

Unless the debtor is certain that his creditor gave the instructions to him, he cannot claim to have fulfilled his obligation by giving the money to the agent. The Siftei Cohen 121:14 states that the same laws apply if the letter was written by a scribe, but signed by the creditor.

For the debtor is denying entirely that he is under any further obligation.

As reflected in the treatment of this subject by the Tur, the most desirable course of behavior is for the debtor to produce the note and have witnesses identify it as having been written in the creditor’s handwriting. Even if that is impossible, he may clear himself by taking a sh’vuat hesset.

Sefer Me’irat Einayim 121:10 states that this ruling applies only when the debtor has the option of denying the debt entirely. For then, he is supported by the principle of migo – i.e., if he desired to lie, he would have denied the debt entirely.

Since he does not have proof that he was authorized by the creditor to pay the agent, he knows that he was liable for the debt and is uncertain if he paid the creditor. In such an instance he is liable, as stated in Hilchot To’en V’Nit’an 1:9.

According to that opinion, Reuven would have to take a sh’vuat hamishnah, as mentioned in the notes on the previous halachah.

I.e., an oath required by Scriptural Law, for he admits a portion of the claim against him.

The Tur and the Kessef Mishneh note that the laws applying to an oath taken by a person who admits a portion of the claim generally involve a situation where an allegation is lodged against a person and he must take an oath to defend his claim. In this instance, by contrast, it appears that the person who admits a portion of the claim is seeking to expropriate money from his creditor.
Accordingly, the Kessef Mishneh explains that the Rambam is speaking about an instance where Reuven is seeking to borrow money from Shimon, and sends Levi to bring him the money that he was loaned. Thus, when he admits to receiving only 20 zuz, he is admitting only a portion of the claim and must take the oath required by Scriptural Law.

For Shimon claims that Levi took the remaining 30 zuz for himself.

As the Kessef Mishneh explains, this clause is based on Halachah 7, which states that before the debtor is required to pay, the creditor and the agent must take oaths. The creditor must take an oath that he sent the agent to take only 20, and that is the amount he received. The agent must take an oath that he paid all the 50 zuz to Shimon.