Rambam - 3 Chapters a Day

Chapter 3, Halachah 1, and either of them may retract, as stated in Chapter 3, Halachah 4.

As the prophet Zephaniah (3:13) states: “The remnant of Israel shall not act perversely, nor shall they speak falsely.”

I.e., he did not pay the entire cost of the object. If, however, the purchaser left collateral for the article he desired to purchase, these laws do not apply, as stated in Halachah 5.

In his Commentary on the Mishnah (Sanhedrin 4:2), the Rambam writes that the curse should be delivered in a public place. The Ramah (Choshen Mishpat 204:4) also mentions this point.

After trying to build the Tower of Babel.

The Ramah (op. cit.) quotes Rabbenu Asher and the Tur, who maintain that the curse should be personally directed to the individual who retracts.

The seller is considered to be an unpaid watchman.

Since the purchaser was the one who nullified the transaction, he must accept responsibility for it.
The Ra’avad differs with the Rambam on this point, explaining that since the seller desires the sale to be completed, he considers himself responsible for the money. The Maggid Mishneh substantiates the Rambam’s view, and it is quoted by the Shulchan Aruch (Choshen Mishpat 198:15).

I.e., like a loan.

According to the Rambam, he is responsible even if the money is destroyed by forces beyond his control. Although there are opinions that differ (considering the seller to be a paid watchman, and freeing him from responsibility if the money was destroyed by forces beyond his control), the Shulchan Aruch (op. cit.) quotes only the Rambam’s view.

This conclusion is derived from the preliminary discussion of a question in Bava Metzia 49a. The Sages’ feeling is that when confronted by the severity of the curse of mi shepara, the seller may rescind his disavowal and carry out the original terms of the transaction.

The Kessef Mishneh emphasizes that he must make - or repeat - this statement to the purchaser after receiving the adjuration of mi shepara. Once this has been done, there is nothing more that the seller can do. The purchaser is responsible to collect his money. Therefore from this time onward, he is freed of responsibility.
The Maggid Mishneh mentions two opinions with regard to this law: one that frees the seller of responsibility only when the coins that the purchaser originally gave him are still in his possession (for then the debt is considered as a loan), and one that frees him of responsibility in all instances. The Shulchan Aruch (loc. cit.) mentions both views.

I.e., a debt that comes as a result of a loan. If, however, the debt comes as a result of a previous sale, meshichah is not necessary, as has been explained in Chapter 5, Halachah 4.

As mentioned in the notes on Chapter 5, Halachah 4, the Ra’avad differs with this decision, maintaining that since a loan is given to be spent, the money is not considered to be present in the debtor’s possession. Hence, it cannot be used for a sale. Rabbenu Asher and the Tur (Choshen Mishpat 204) support the Ra’avad, maintaining that the purchaser must state that he is acquiring the object in return for the satisfaction in the nullification of the loan.
Based on Bava Metzia 46b, the Rambam, however, maintains that a loan can serve as payment for an article, provided that the article is taken into the purchaser’s possession. The Shulchan Aruch (Choshen Mishpat 204:10) quotes both views, while the Ramah mentions that of the Ra’avad and Rabbenu Asher.

For the sale of landed property is finalized with the payment of money.

For the collateral he left is not a deposit and must. be returned. Thus, the purchaser is not giving the seller anything. Hence, the transaction is not completed. As mentioned in Halachah 1, if the seller puts down a deposit, that is sufficient to complete the transaction (if landed property is involved) or to require the adjuration mi shepara (if movable property is involved).

Note, however, Halachah 8.

If, however, a price was not established, no agreement is binding, as stated in Chapter 4, Halachah 11 (Maggid Mishneh).

For by making the mark, he consented to the transaction in a binding way, as if he had already paid for the article he desired.

For making the mark is equivalent to performing meshichah or any other binding kinyan.
This reflects a fundamental principle in Jewish business law. The local business practices are considered to be the determinants of all transactions. The rationale is that any condition accepted by both parties to a transaction is binding. It is taken for granted that the parties to a transaction agreed to conduct it according to the rules of local business practice.
On this basis, the Shulchan Aruch (Choshen Mishpat 201:2) rules that if it is local business custom to consider a handshake as the sealing of a business deal, after the buyer and the seller shake hands on a deal, neither can retract.

The commentaries have noted the contrast between this halachah, where the Rambam merely states that the purchaser is obligated to pay, and Chapter 3, Halachah 4, where he states that the purchaser should be compelled to pay. They explain that since it is only a custom to consider making a mark to be a binding act, the court is not empowered to compel the purchaser to keep his commitment.

If, by contrast, the purchaser made the mark outside the seller’s presence, it is of no consequence. For we have no knowledge that the seller would agree to the terms of the sale.

Chapter 1, Halachah 8.

Chapter 2, Halachah 6.

Needless to say, the Rambam is referring to an instance when a kinyan was not performed.

The Shulchan Aruch (Choshen Mishpat 204:7) quotes the Rambam’s ruling verbatim. Sefer Me’irat Einayim 204:12 explains that according to these authorities, this ruling applies even if the price of the article changes. The Tur [see also the Ramah (Choshen Mishpat 204:11)] differs and maintains that if the price of the article rises or declines, both the seller and the purchaser have the right to retract.

The person who made the promise is considered to be faithless, because the intended recipient was expecting the promise to be fulfilled and was relying on the gift.

Since the article is of such great value, the recipient does not rely on the promise being fulfilled.

The Shulchan Aruch (Choshen Mishpat 204:9) states that if many people promise to give a large gift, they cannot retract. Sefer Me’irat Einayim 204:14 explains that since many people are involved, it is as if each one is giving a small gift. Hence, the recipient will rely on the fulfillment of the promise.

The fact that the agent used his own funds is significant. The laws that apply if the agent used the funds entrusted to him are described in Halachah 12.

And the object belongs to him.

In Hilchot Ishut 9:17, the Rambam describes a similar situation with regard to the consecration of a woman and calls the deceitful agent “wicked.” The commentaries reflect upon the difference between these two terms.
The adjuration mi shepara is not administered, because that adjuration was prescribed by our Sages only for unfaithfulness in keeping one’s word in a transaction, and not as a general rule applying to all forms of deceitful business techniques (Tur, Choshen Mishpat 183).

Sefer Me’irat Einayim 183:2 interprets this to mean that even at the outset - i.e., when the money was entrusted to him - the agent was aware of the seller’s preference.

He is not obligated to intercede on behalf of the person who sent him. This concept is demonstrated by several stories cited in Kiddushin 59a.

In this way, he removes all shadow of doubt regarding his integrity.

These opinions are mentioned by the Mordechai.

I.e., he decides that he will take the money that the principal gave him for himself and then use that money to purchase the article that the principal desired.

I.e., these authorities maintain that the agent’s appropriation of the funds is viable.

For the agent has no right to take his colleague’s money as his own without permission. Thus, the money remains the possession of its original owner, and the property acquired in exchange for that is therefore the original owner’s.
The Rambam’s ruling is quoted by the Shulchan Aruch (Choshen Mishpat 183:3). The Ramah quotes two opinions: that of Rabbenu Yerucham, which follows the opinion mentioned by the Rambam in the name of the Geonim, and that of the Maggid Mishneh, which states that if the agent states that he is taking the money as a loan in the presence of witnesses, he is allowed to purchase the property for himself.

Hilchot Sh’luchim V’Shutafin 1:5.

And thus, none of the monies given by each of the partners remains a distinct entity. The Tur (Choshen Mishpat 184) states that this ruling applies even when the partners gave the monies separately, and they were mixed by the agent.

I.e., if Reuven gave 400 zuz, Shimon 300, and Levi 300, Reuven acquires only 40% of the article, even if the article cost 400 zuz and the agent intended that it be purchased for Reuven alone.

The Ramah (Choshen Mishpat 184:1) quotes the Tur, who states that if the agent explicitly states that he is purchasing the article for only one of the partners, that person acquires sole ownership.

Since his funds remained distinct and were used for the purchase, he alone becomes the owner.

As the Rambam states in the following halachah, ordinarily when a person makes a deposit on a parcel of landed property, he acquires the entire property. The situation described in this halachah is an exception, for the fact that the person repeatedly comes demanding payment of the remainder indicates that the reason he sold his field was that he was in immediate need of money. Since his need was not met, the transaction is not considered to be completed.

Although normally, both of these kinyanim would finalize a purchase of landed property, an exception is made in this instance, for the reasons stated in Chapter 1, Halachah 7.

The Rambam changes the wording of Bava Metzia 77b (the source of this halachah) slightly, to emphasize that the acquisition of the land has not yet been made final.

He is given the least valuable portion of property as a penalty for breaking his commitment.
The Maggid Mishneh and the Ramah (Choshen Mishpat 190:10) quote the Ramban as stating that the property is divided according to its worth at the time, and not according to the price agreed to at the time of the sale.

The seller, also, cannot retract. The Rambam does not mention this point, however, because it is taken for granted that since the seller wished to dispose of the property because of its inferior quality, he would surely not desire to retract.

I.e., although by law the purchaser may not retract, the seller may not be aware of the law and think that the purchaser has that prerogative (Sefer Me’irat Einayim 190:17).

If the object of the sale cannot be divided - e.g., an animal - the only alternative is to cancel the sale entirely (Maggid Mishneh).

This law applies only with regard to landed property, for, as stated in Chapter 13, Halachah 8, the laws of ona’ah (unjust gain) do not apply to such transactions. With regard to movable property, by contrast, such a sale would be nullified.

See Sefer Me’irat Einayim 190:20, which states that the seller can seize a portion of the field appropriate to its true worth. For example, if the purchaser paid him 150 zuz, he can still maintain possession of half the field, for that portion of the field is worth the 50 zuz that are outstanding.

It is considered as if the purchaser paid the entire amount stipulated.

See Chapter 15, Halachot 1 and 2, where this law is also discussed.

If this phrase is not included, the first purchaser has no claim at all. See Ramah (Choshen Mishpat 206:4).

Similarly, a kinyan is necessary. Otherwise, there would be nothing to formalize the commitment.

The commentaries emphasize that this applies even when the first purchaser is also willing to add the extra amount.

Since he stated that the decision must be made by four judges, a number larger than the ordinary makeup of a court, we assume that he desired that all the judges concur (Maggid Mishneh).

Therefore, once that stipulation is met, the transaction takes effect.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.]

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.

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.

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

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).

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.

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

For it was finalized through meshichah.

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.

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

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

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).

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

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.

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.

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.

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

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