Rambam - 3 Chapters a Day

A person cannot transfer ownership over an article that has not yet come into existence. This applies with regard to a sale, with regard to a present or with regard to the disposition of an oral will.

What is implied? If a person states: "What my field will produce is sold to you," "What this tree will grow is given to you," "Give so and so the offspring that this animal bears," the recipient does not acquire anything. Similar principles apply in all analogous situations.

When a person sells the fruit of a date palm to a colleague, he may retract even after the fruits of the date palm have already come into existence. If the purchaser harvests the fruits, they are not expropriated from him. If either of them retracts, he is not required to receive the adjuration mi shepara.

When, however, a person sells produce at the market price, although the seller was not in possession of the type of produce, the seller is obligated to purchase the amount of produce he pledged, and give it to the purchaser. If he retracts, he must receive the adjuration mi shepara.

The following rules apply when a person sells produce at the market price, promising to give four se'ah for a sela. Even if the grain was in stalks, the transaction is completed, and if he retracts, the seller is liable to receive the adjuration mi shepara, provided either of the following stipulations is met:

a) the seller shows the purchaser that he possesses grain in his storehouse, or

b) the purchaser tells the seller in the market place: "I am relying on you." If the purchaser did not tell the seller: "I am relying on you," the seller does not consider this to be a firm agreement, and he is not required to receive the adjuration mi shepara if he retracts. For he says to himself: "Perhaps the purchaser also made such an agreement with another individual and he does not actually require this wheat."

An entity that is not in the possession of the seller cannot be acquired; it is like an entity that has not come into existence.

What is implied? When a seller says: "What I will inherit from my father is sold to you," "What my net will bring up from the sea is sold to you," or "When I purchase this field, it is sold to you," the purchaser does not acquire anything. Similar principles apply in all analogous situations.

When a person was on his deathbed and the heir desired to sell some of the dying person's property to spend the money for the sake of the burial, our Sages ordained that if the heir says: "What I will inherit from my father today is sold to you," the sale is binding. The rationale is that since the son is poor, if he is forced to wait until his father dies to sell the property, the corpse will remain unburied and be disgraced.

Similarly, provisions were made for a poor fisherman who has nothing to eat. If he says: "What my net brings in today from the sea is sold to you," the sale is binding. This was ordained to provide for his livelihood.

If a son sold property belonging to his father during his father's lifetime, but the son died in his father's lifetime, the son's son may expropriate the property from the purchasers. The rationale is that his father sold something that had not entered his domain. Thus, the property remained in the domain of the grandfather, and the grandson inherited the estate of his grandfather. Similar principles apply in all analogous situations.

The following rules apply when a person gave a colleague landed property as a present, and together with it gave him 100 dinarim through a kinyan agav. If the dinarim existed in his domain at the time he gave the present, when the recipient acquired the field, he also acquired the dinarim. If, however, the giver does not have a dinar, we do not obligate the giver to give the recipient 100 dinarim until the recipient brings proof that the giver possessed dinarim at the time the recipient acquired the present.

The same principles apply to other movable property that a person desires to transfer together with landed property through a kinyan agav. If the movable property is not in the domain of the seller or the giver at the time the recipient acquires the present, he does not acquire it. For a person may not transfer ownership over an article that is not in his domain.

When a person has entrusted an object to a colleague for safekeeping, he may transfer ownership over it, either through a sale or through a gift. The rationale is that an entrusted object is in the domain of its owner, and we operate under the presumption that the entrusted object continues to exists

If, however, the person to whom the article was entrusted denies receiving it, the owner may not transfer ownership of it. It is as if the article were lost; it is not in his domain.

Different rules apply with regard to a loan. Since a loan is given with the intent that it be spent, it cannot be transferred except through a ma'amad sh'loshtam, a convention that is not based on a motivating reason, as we have explained.

If the loan was supported by a promissory note, the creditor may transfer ownership of the promissory note with a written authorization and the transfer of the note, for there is an entity that can be transferred through which one can acquire the encumbrance it contains.

Just as a person may not transfer ownership of an article that has not yet come into existence, so too, he may not transfer ownership of an article to someone who has not come into existence. Even a fetus is considered to be someone who has not come into existence, and thus, when a person wishes to endow a fetus with an article, the transaction is not binding.

If, however, the fetus is the person's son, the transaction is binding. The rationale is that a person feels great closeness to his son.

When, however, a person tells his wife: "I will give my property to the children that you will bear," the children do not acquire anything. Since the woman was not pregnant at the time the present was given, the children had not yet reached a stage at which it could be said that a person feels great closeness for them.

When a person desires to transfer ownership of property to an animal, the transfer is not effective at all. If a person attempted to transfer part of his property to an animal or to a person who did not exist, and afterwards told a colleague: "Acquire a share of my property as this animal does," or "... as this fetus does," [the colleague does not acquire anything.

If he tells him: "You and this animal shall acquire my property," or "You and this fetus ... ," the person acquires half of the property.

A person cannot transfer ownership - neither through a sale nor through a present - over an object unless it has substance. If it has no substance, ownership of it cannot be transferred.

What is implied? A person cannot transfer ownership over the fragrance of an apple, the taste of honey, the color of crystal or the like. Therefore, when a person desires to transfer ownership of the right to partake of the fruits of this date palm or to dwell in this home, the recipient does not acquire anything. For the transaction to be effective, the owner must transfer the house itself for the sake of dwelling in it, or the tree itself for the purpose of eating its fruit, as will be explained.

The laws applying to transactions involving property consecrated to the Temple, the poor, and vows are not the same as those involving ordinary people. If a person says: "All the offspring of my animal will be consecrated to the Temple treasury," "... will be forbidden to me," or "... will be given to charity," although the offspring does not become consecrated - because it does not yet exist - the person making the statement is obligated to keep his word, as Numbers 30:3 states: "He must act according to the statements that he utters."

Since this is so, if a person on his death bed says: "Whatever this tree produces should be given to the poor," or "The rent from this house should be given to the poor," the poor acquire these objects.

There are Geonim who differ with this principle and hold that the poor acquire only in a similar matter to that of an ordinary person. Therefore, they do not acquire an entity that has not come into existence. I do not accept these principles. My rationale is that a person is not commanded to transfer ownership of property. He is, however, commanded to fulfill his pledges to charity or to consecrate property, as he is commanded to fulfill other vows, as we have explained in Hilchot Arachin.

A person can transfer ownership over a property itself with regard to the produce it yields. This applies with regard to a sale, with regard to a present or with regard to an oral will. This is not considered to be transferring ownership of an entity that has not come into existence. For the article itself exists, and the person is transferring ownership over its produce. To what can the matter be compared? To a person who rents a house or a field to a colleague, in which instance he did not transfer ownership over the property in its entirety, but rather merely the right to derive benefit from it.

What is implied? A person sold or gave away a field with regard to its produce for a limited time, or for the entire lifetime of the seller or of the purchaser.

Similar rules apply to a person who sells or gives away a tree for its fruit, a sheep for its shearings, an animal or a maid-servant for her offspring or a servant for his work. In all such instances, the sale or the present is binding.

There is an unresolved question if a sale is binding when a person sells his servant with regard to his fine - i.e., whether the fine which is imposed if the servant is gored by an ox and killed should be given to the purchaser or not. Therefore, the purchaser does not acquire the money; if he seizes it from the servant's owner, it is not expropriated from him.

When a person sells a tree to one person and its fruit to another, when making the first sale he did not leave over the rights to the fruit. Therefore the second purchaser does not acquire anything.

If, however, a person sells a tree and leaves its fruit to himself, it is considered as if he retained the branches, the place where fruit grows, even if he did not explicitly say so. The rationale is that when a person retains property for himself, he acts generously.

When a person sells landed property for a specific time, the sale is binding. The purchaser may use the body of the land as he desires and derive benefit from it throughout the duration of the sale. At the end of the specified time period, the property returns to its original owner.

What is the difference between a person who sells landed property for a specific time and one who transfers ownership of it with regard to its produce? A person who purchases land with regard to its produce may not change the form of the land. He may not build, nor may he destroy. When, by contrast, a person purchases land for a specific time, he may build and destroy. During that specific time, he may act in the same manner as does one who purchases the land forever.

What is the difference between a person who sells a field with regard to the produce it yields, and a person who sells a colleague the produce of a particular field?

When a person sells the produce of a particular field, the purchaser has no right to use this field at all. He is forbidden even to enter, except to take out his produce. The owner of the field, by contrast, may do whatever he desires within.

When, by contrast, a person sells a field with regard to the produce it yields, the owner of the field may not enter the field without the consent of the purchaser, and the purchaser may use the field as he desires.

What is the difference between a person who purchases a field with regard to the produce it yields, and a person who rents a field from a colleague?

A person who purchases a field with regard to the produce it yields may plant trees or seeds within it whenever he desires or leave it fallow. A renter does not have this right, as will be explained with regard to rentals.

A renter does not have the right to sublet the property. One who buys the property may, however, sell the rights he purchased to another person.

When a person sells the benefit to be obtained from a dovecote or the benefit to be obtained from a beehive to a colleague, the sale is binding. He is not considered to have sold an entity that has not come into existence. For he is not selling the doves that will be born or the honey that will be produced in the beehive. Instead, he is selling the dovecote with regard to the benefit it produces, and the beehive for its honey.

The seller can be compared to a person who rents a stream of water to a colleague, in which instance the renter may derive benefit from everything he catches within. Similarly, when a person sells a dovecote with regard to its benefit, it is as if he sells a tree with regard to its fruit. And the laws applying to both of them are like those applying to a person who rents a house, as we have explained in Halachah 1. Such a person may derive all the possible benefits from the property. Similar laws apply in all analogous situations.

The owner of the dovecote does not acquire the eggs and the fledglings in the dovecote until they fly. This is a Rabbinic decree, enacted as a safeguard to the prohibition, Deuteronomy 22:6: "Do not take the mother with the young."

Therefore, if a person wants to transfer the ownership of these eggs or these fledglings to a colleague, he should rap on the dovecote so that the mothers will fly away, lifting themselves up from the ground. He should then transfer ownership of the dovecote to his colleague via a kinyan chalifin, by virtue of the transfer of landed property, or via another means of acquiring movable property.

When a person purchases the benefit to be derived from a dovecote from a colleague, he is not entitled to take all the fledglings that will be born from the time of the purchase onward. If he did that, the mothers would fly away and he would destroy the dovecote entirely. Instead, he should leave enough of the fledglings so that the dovecote will remain populated.

How many of the fledglings must he leave? If there were mother doves and female fledglings at the time he sold the benefit from the dovecote, he should leave the first pair of offspring that the mothers will bear, so that the mothers will be able to establish rapport with the first pair and with the female fledglings that were with them from the time of the sale. He should also leave two pairs of fledglings from those that the daughters who were in the dovecote from the time of the sale bear, so that the daughters will be able to establish rapport with these two pair that they bore. Whatever offspring are born after the first two pair from the daughters and the first pair of the mother belong to the purchaser.

When a person purchases the benefit to be gained from a beehive from a colleague, he may take three swarms of bees - one after the other. After that, he should take a swarm and leave a swarm to populate the beehive.

When a person purchases blocks of a beehive from a colleague, he should leave at least two blocks in the beehive, so that the bees do not fly away and abandon the hive.

When a person purchases olive trees from a colleague to cut down as lumber, he must leave two fistfuls of the tree above the ground before cutting. If he purchases a wild fig tree that was never cut down, he must leave three handbreadths before cutting. If he purchases a wild fig tree that was cut down previously, he must leave two handbreadths. For other trees, one handbreadth must be left before cutting.

For reeds and vines, he must leave the lowest knot above the ground. With regard to palm trees and cedar trees, the purchaser should dig out its roots, for it will not grow again.

When a person sells three trees within his field, even three small newly planted trees, or three growths of one tree, the purchaser also acquires the land necessary to nurture them. Even if the trees dry up or are chopped down, he still owns the land necessary to nurture them. The purchaser also acquires all the other trees between them.

How much land is necessary to nurture them? The land beneath them, between them and beyond them, in which a person picking fruit can stand together with his basket.

This place - the place in which a person picking fruit can stand together with his basket - may not be sown by either the buyer or the seller unless the other agrees.

When does the above apply? When the three trees that he purchases are positioned like the three feet of a range on which a pot is placed - i.e., two parallel to each other and the third equidistant between them, but not on the line connecting them. There must be at least four cubits between each tree, and no more than sixteen cubits.

From where does one measure? From the wide portion of the trunk of the tree.

In the following situations, by contrast, the purchaser does not acquire land: the trees were not standing in such a position, they were closer together than four cubits or more distant than sixteen cubits; he purchased one after the other; he sold him two trees in the midst of his field and the third on the boundary line; the purchaser bought two trees in one person's field and one in a field belonging to a colleague; or a cistern, an irrigation ditch or the public domain was interposed between the purchaser's three trees.

Therefore, the purchaser does not acquire the trees between the trees he purchased. If his trees dry up or are cut down, he has no further rights.

The following rules apply whenever a person purchases three trees and therefore acquires land: If the trees grow and a new branch emerges outward from the trunk, it should be cut off, so as not to limit the passage of the owner of the field.

All the twigs and small branches that emerge from the trees - even those that emerge from the roots - belong to the owner of the trees, for he has acquired the land.

When a person purchases two trees in a field belonging to a colleague, the purchaser does not acquire any land. Therefore, if one of his trees dies or is cut down, he has no further right to the land.

If his two trees grow and produce twigs and small branches, they should be cut off, lest they grow into the earth and appear as a third tree. Then the purchaser would tell the seller: "You sold me three trees and I have a right to the land."

The following laws apply to all the branches that the owner of the trees trims from them. Any branches that grow from the portion of the trunk that sees the sun belong to the owner of the trees. The branches that grow from the roots and do not see the sun belong to the owner of the field. With regard to palm trees, the owner of the tree does not acquire any of the branches, for they do not grow from the trunk.

When a person sells landed property but retains the rights to the trees, he also retains possession of half of the land. For if he did not retain possession of the land, the purchaser would tell him: "Uproot your trees."

Similarly, if he retains the rights to two trees, he also retains possession of the land appropriate for them. For if he did not retain possession of the land, the purchaser would tell him: "Uproot your trees."

When a person sells trees, but retains possession of the land, the owner of the trees acquires possession of the land necessary for them, as we have explained.

If a person sold the land to one person and the trees to another, and the purchaser of the trees manifested his ownership over the trees, and the purchaser of the land manifested his ownership over the land, the purchaser of the trees acquires the trees and half the land, while the purchaser of the land acquires only half the land.

When brothers divide an inheritance, one taking an orchard and one taking a field of grain, the owner of the orchard receives four cubits in the field of grain next to the orchard. He is granted this land because we assume that they divided the land with this stipulation in mind. It need not be stated explicitly, because it is something that is well known.

The following rules apply when a person sells a field containing date palms to a colleague and specifies that he is selling him the field with the exception of one specific tree. If it is a valuable and high-quality tree, we assume that he retained ownership of that one date palm alone; the remainder belong to the purchaser. If the date palm that he specified that he was retaining is inferior, we assume that he surely retained ownership over the others, and the purchaser does not acquire any of the date palms at all.

The following rules apply when a person sells a field to a colleague and tells him that he is selling it to him with the exception of the trees. If it contains only date palms, the seller retains ownership over the date palms. If it contains only vines, the seller retains ownership over the vines. Similar rules apply if it contains only one other type of tree.

If the field contains vines and date palms, the seller retains ownership over the vines alone. If it contains other trees and vines, the seller retains ownership over the other trees alone. Similarly, if it contains other trees and date palms, he retains the other trees alone. The rationale is that whoever sells, sells generously,

If the seller retains ownership over date palms, he retains ownership over only those date palms that are tall and that one must ascend by means of a rope. The others belong to the purchaser. If he retains ownership over trees, he retains ownership over only those trees that will not be bent over by a yoke. Those that can be bent over by a yoke belong to the purchaser and are considered to be part of the field.

The following rules apply when a person tells a colleague, "I am selling you land and date palms." Even if there are no date palms on the land that he was intending to sell, if he desires to transfer ownership of two other date palms, the transaction is binding. The purchaser does not have the option of saying: "I am purchasing only land that has date palms growing on it."

If, however, the seller tells him: "I am selling you land with date palms," the sale is binding only when there are at least two date palms on the land. If not, it is considered a transaction entered into under false premises, and it is nullified. If the seller tells the purchaser: "I am selling you land for date palms," it need not have date palms. This expression indicates merely that the land is fit to grow date palms.

When a person sells an orchard to a colleague, he must write: "Acquire the date palms, the dates and the palm branches." Although the purchaser acquires all of these entities even when they are not explicitly mentioned in the deed of sale, mentioning them makes the wording of the document articulate.

Similarly, when a person sells landed property to a colleague, he must write: "I have not retained ownership over anything in this sale," to prevent judgments and claims from arising.

The following rules apply when a person sells a house to a colleague: Even though he writes in the deed of sale: "I have transferred ownership of its depths and its heights," he must write to him: "Acquire from the ground of the earth's depths to the heights of the sky." For the heights and the depths of the property are not transferred when no specification is made.

If he said that he was transferring ownership of the heights and the depths, the purchaser would acquire the height - i.e., the atmosphere alone- and the depths, what is under the ground. He does not acquire what is in their midst. When, however, he writes: "From the ground of the earth's depths to the heights of the sky," he acquires a water receptacle and a cistern that are in the midst of the earth and the pathways that are in between the ceiling and the top of the building.

When a person sells a home on the condition that the upper storey remains his, he retains possession of that portion of the building. If he desires to extend projections from it, he has the right. If it falls, he may rebuild it. And if there was a third storey built on top of the second and it fell, if he desires to rebuild it, he may build it as it was before it fell.

Although a person sells his grave, the path to his grave, the place where the funeral procession stands in honor of the departed, or the place where eulogies are recited, the family may come and bury the deceased there or perform any of the other rites against the will of the purchaser.

This privilege was granted lest the failure to do so blemish the honor of the family. They must pay the purchaser for the grave in which the deceased was buried. This provision is granted even though it was not stated explicitly in the original deed of sale.