Rambam - 1 Chapter 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.