Rambam - 3 Chapters a Day

The following rules apply when a person tells a colleague: "I am selling you a parcel of earth fit to sow a kor." If the land contains small hollows that are ten handbreadths deep even if they do not contain water, or rocks that are ten handbreadths high, they are not included in the above measure.The rationale is that a person does not want to pay money for one parcel of land and have it appear as two or three parcels. The purchaser acquires these rocks and hollows as part of the parcel of land fit to sow a kor without paying for them.

If the hollows or the rocks are smaller than ten handbreadths, they are measured together with the remainder of the field.

When does the above apply? When together, the area of all the rocks and the hollows was no more than the area necessary to sow four kabbim and was contained within an area where at least five kabbim could be sown, and was contained within the majority of the field.

If the area of the rocks and the hollows is more than the area necessary to sow four kabbim that area is very spread out, or it is contained within a lesser area than one in which five kabbim could be sown, they are not included in the measure of the field, even if they are not ten handbreadths high or deep.

All the following situations are questions left unresolved by the Talmud: The majority of the area necessary to sow four kabbim is contained in a small portion of the field, a small portion of the area necessary to sow four kabbim is contained in the majority of the field, the rocks are in a straight line, in a circle, in a triangle, they are in the shape of a star, or in a jagged line. In all these instances, because of the doubt involved, we follow the principle: One who desires to expropriate money from a colleague must prove his contention.Similarly, if there is earth on top and a rock beneath it, or a rock on top and earth beneath it, there is an unresolved doubt among our Sages, and the above principle is followed.

If there is one large rock, even if it is only as large as the area necessary to sow a quarter of a kav, it is not included in the measurement. If a rock is next to the border of a field, even if it is very small, it is not included in the measurement. If there is some earth between the rock and the boundary, there is an unresolved doubt among our Sages.

When the seller tells the purchaser: "I am selling you a parcel of earth like the area fit to sow a kor" different rules apply. Even if it has hollows that are ten or more handbreadths deep or stones that are ten or more handbreadths high, they are included in its measure.

When a person tells a colleague: "I am selling you a parcel of earth fit to sow a kor, as measured with a rope" the measurement must be exact. If the land is even slightly smaller, the purchaser may reduce the payment proportionally. If it is even slightly larger, the extra amount should be returned to the seller.

When the seller tells the purchaser: "I am selling you a parcel of earth fit to sow a kor," it is as if he said "approximately a parcel of earth fit to sow a kor, perhaps more, perhaps less."

The following laws apply. If the measure was one twenty-fourth less - i.e., a fourth of a kav, for each parcel of earth fit to sow a se'ah, it is considered to be within the terms of the original agreement. If the deviation is larger than that, he should calculate the amount due for all the parcels of land fit to sow a fourth of a kav that are either lacking or additional. He should deduct from the price for the entire amount that is less than the parcel of earth necessary to sow a kor or make restitution to the seller for everything that is more than that amount.

How should restitution be made to the seller? If the additional amount is less than an area fit to sow nine kabbim, the purchaser should return to the seller the percentage of the price paid at the time of the sale. This is done to strengthen the position of the seller.

If the extra portion of land is located next to another field belonging to the seller, the purchaser should return the land itself. For the seller can include it with his other fields and will not suffer any loss.

If the additional amount is more than an area fit to sow nine kabbim, the purchaser should return to the seller a fourth of a kav for each parcel of earth fit to sow a se'ah. If the remainder besides these fourths of-a-kav parcels is an area fit to sow nine kabbim, the purchaser should give the seller these fourths of-a-kav parcels and the additional land. If the seller does not desire the land, the purchaser has the option of paying the seller according to the price at the time of purchase.

When does the above apply? When the land was inexpensive at the time of the sale and rose in value at the time when restitution is being made. If, however, the land was expensive and decreased in value, we tell the purchaser: "If you desire, pay him for the entire additional amount, giving him the price at the time of the sale. If you desire to give him land, give it to him according to its present value."

The same laws that apply to an area fit to sow nine kabbim in a field apply to an area fit to sow half a kav in a garden. If there is less than half a kav in addition to the fourths of a kav for each parcel of earth fit to sow a se'ah, the purchaser is required only to return money. If there is an additional half kav, the purchaser should pay him for all the additional fourths and the extra amount or return the land to him even if its price decreased at the time it is being returned.

When a person sells a field and it becomes a garden while in the possession of the purchaser, or he sells a garden and it becomes a field while in the possession of the purchaser, there is a doubt whether the laws are determined according to its state at the time of the sale or its immediate state.

When a person tells a colleague: "I am selling you a parcel of earth fit to sow a kor, as measured with a rope, perhaps more, perhaps less," or if he says: "I am selling you a parcel of earth fit to sow a kor, perhaps more, perhaps less, as measured with a rope," one should follow the less committing of the implications. The purchaser does not receive more according to the principle: "When a person desires to expropriate property from a colleague, the burden of proof is on him," whether the seller's statements imply more or less.

When a person sells a colleague a parcel of land fit to sow a kor and states signs and boundaries for it that are a sixth less or a sixth more than the area fit to sow a kor, the sale is binding. If it is less than that amount by more than a sixth, the seller must subtract from the sum the purchaser pays. If the field was more than a sixth larger, the purchaser should give him either money or land as appropriate for the extra amount. If the extra amount was less than an area fit to sow nine kabbim in a field, or less than an area fit to sow half a kav in a garden and it was not located next to a field belonging to the seller, the purchaser should return the appropriate amount of money.

The following rule applies when a person sells to a colleague a field with which the colleague is familiar and knows its boundaries. Even if he tells him that its measurement is 200, and in truth it is only 150 the sale is binding. For he knew the field and accepted it. By saying its measure is 200, he was stressing its importance. It is as if he had said: "It is as valuable as a field that is 200 in measure."

When a person tells a colleague: "I am selling you this and this parcel of land fit to sow a kor" even though when measured, it is fit to sow only a letech, the sale is binding. For he sold him a place that was called "fit to sow a kor." For this reason, the seller must bring proof that the parcel of land is called "fit to sow a kor."

Similarly, if a person tells a colleague: "I am selling you my vineyard in this and this place," even if there are no vines on the land, the sale is binding, provided the place is described as a vineyard.

Similarly, if a person tells a colleague: "I am selling you this orchard," even if there are no pomegranates on the land, the sale is binding, provided the place is described as an orchard. Similar principles apply in all analogous situations.

All the above rules apply only in a place where there is no prevailing local custom, as we have explained. When, by contrast, there is a prevailing local custom, that custom should be followed. Similarly, we follow the implied meanings of the expressions used by the majority of the local people.

There are three types of individuals whose purchase is not considered a binding purchase, nor is their sale considered a binding sale according to Scriptural Law: a deaf mute, a mentally incapable or emotionally unstable individual, and a minor. Our Sages, however, ordained that a deaf mute and a minor may buy and sell in order to guarantee their livelihood.

How does a deaf person buy and sell? Both a deaf mute and a deaf person who can speak may buy and sell through gestures.

This applies with regard to movable property, but not with regard to landed property. Moreover, even with regard to movable property, his deeds are not binding until he has been tested many times and the matter is considered thoroughly by the court.

Different rules apply with regard to a mute who can hear but cannot speak, or someone who has lost the ability to speak. Both sales and purchases in which he engages are binding, as are the presents which he gives, whether movable property or landed property is involved, provided he is tested as one tests with regard to a bill of a divorce, or he writes instructions by hand.

Neither a sale nor a purchase involving a mentally incapable or emotionally unstable individual is binding, nor are the presents he gives effective. Instead, the court must appoint a guardian for such a person, just as it appoints guardians for minors.

The following rules apply when a person is at times unable to control his behavior and capable of doing so at other times - e.g., an epileptic. During the times he is capable of controlling his behavior, all of his financial undertakings are binding. He can acquire property for himself and for others like any other ordinary person. When he is not in control, his deeds are not binding.

Witnesses to a transaction must research the matter carefully - perhaps the transaction was concluded at the conclusion of a period of mental instability, or when an unstable period began.

The following rules apply to a minor: Until he is six years old, he may not transfer property to others at all. From the age of six until he attains majority, he should be tested. If he possesses an understanding of the nature of financial transactions, any purchases or sales he undertakes, and any presents he gives, are binding.

This applies whether a large matter or a small matter is involved, whether he is giving a present while healthy or he is dispensing his property on his deathbed.

As we have explained, this is a Rabbinic decree, instituted so that the minor will not be forced to remain idle, without finding anyone to sell to him or buy from him. And this applies only with regard to movable property. With regard to landed property, a minor cannot sell or give property away until he attains majority.

When does the above apply? With regard to a minor who does not have a guardian. If, however, the minor has a guardian, his transactions, even those involving movable property, are of no consequence unless they are approved by the guardian. If the guardian does desire to approve a purchase, a sale or a present of movable property, it is binding.

We test a minor to see whether or not he possesses an understanding of the nature of financial transactions. For there are some minors who are wise and astute and understand such matters even at age seven, and there are others who do not understand financial transactions even when they reach the age of thirteen. When a minor who does not have a guardian and who possesses a good understanding of financial matters errs with regard to the appraisal of an object, the same laws that apply to an adult apply to him. If the error is less than a sixth of the value of the object, he is considered to have waived the difference. If it is a sixth, the unfair gain must be returned, and if it is more than a sixth, the transaction is nullified, as we have explained.

I maintain that a purchase or a sale of movable property in which a minor engages is not binding unless the transaction is concluded by meshichah. If, however, a minor paid money for an article and then reneged, the transaction is nullified.The minor is not required to receive the adjuration mi shepara. If, however, others renege on their commitment to him, they are required to receive the adjuration mi shepara.

Similarly, if a kinyan sudar was made with a minor or the purchaser rents the place on which the movable property was located, and the minor retracted, the purchaser does not acquire the movable property.For property cannot be expropriated from a minor through legal process. And a kinyan established by a minor is of no consequence. For a kinyan depends on a legal document, and witnesses will not sign a legal document unless the parties involved are above the age of majority.

Similarly, if a minor purchased movable property and sought to finalize the transaction with a kinyan sudar or by renting the place where the movable property was located, he does not acquire the movable property until he performs meshichah. The rationale is that he cannot acquire property using any of the legal processes that are used by an adult. Proof of this thesis can be drawn from the fact that a male minor does not acquire by virtue of the presence of property in his courtyard, nor by virtue of the presence of property within the radius of four cubits next to him. The rationale is that these are effective with regard to the acquisition of property, because of the principle of agency, not as an extension of his physical person, as will be explained. It is improper that a kinyan sudar and the rental of the place where property is located should be more effective than the acquisition of property by virtue of its presence in one's courtyard.

Different rules apply with regard to a female minor. She is given the right to acquire property by virtue of its presence in her courtyard, as an extension of her physical person. Therefore, she may finalize the acquisition of movable property with a kinyan sudar or by renting the place where the movable property was located.

It appears to me that when a minor acquires landed property, pays its price, and manifests possession over the property, it should remain in his possession, despite the fact that he cannot sell property. The rationale is that it is as if the minor were not in our presence. And we follow the principle: we may acquire a benefit for a person outside his presence, but we cannot cause a loss for a person outside his presence.

When a minor attains majority - i.e., a male over thirteen years old and a female over twelve, when they manifest signs of physical maturity - any purchase, sale or present of movable property that he or she undertakes is binding. This applies even if he or she does not possess an understanding of the nature of financial transactions.

With regard to landed property, by contrast, his deeds are not effective unless he is past majority and possesses an understanding of the nature of financial transactions.

When does the above apply? With regard to his own property. With regard to landed property that he inherited from his parents or from other deceased persons, his sale of this land is not effective until he is twenty years old. This applies even though he has manifested signs of physical maturity and possesses an understanding of the nature of financial transactions. This restriction was applied lest the youth sell the land cheaply, because he is attracted by money, and he has not become settled within ordinary worldly ways.

When a youth below the age of twenty gives a present of landed property - whether he gives it while healthy or as part of the distribution of his property in an oral will - it is binding. The rationale is that unless he received significant benefit, he would not have given it. Moreover, this is a rare occurrence. Our Sages said: "Let his present endure, so that his words will be heeded."

When does the license for a youth to sell property inherited from his father after he reaches twenty apply? When he has manifested signs of physical maturity or manifested signs of being sterile. If, however, he did not manifest signs of physical maturity or sterility, he is still considered a minor, and a sale of landed property that he makes is not binding - even with regard to property that he acquires himself - until he reaches the age of 35.

The following rule applies when a youth sells landed property - that he either purchased or inherited - and then dies, and his heirs maintain that he was a minor at the time of the sale. If they seek to have an examination made, we do not heed their desire to debase his remains. Moreover, it is questionable whether the examination would be of any value, because the appearance of these physical signs changes at the time of death. A further rationale to accept the validity of the sale is that we accept the presumption that witnesses would not sign a deed of sale unless they knew with certainty that the seller had attained majority.

When a youth who is below the age of twenty sells property that he inherited, he may expropriate it from the purchaser, whether before the age of twenty or after the age of twenty.

When he expropriates the property, he may also expropriate the value of all the produce of the property that the purchaser has consumed. If the purchaser undertook expenses or planted or sowed, we evaluate the amount due him, but he must return the remainder.

This is the way my masters have ruled. I maintain that even if a minor sells property that he inherited, if he does not protest immediately after he becomes twenty, he is no longer able to protest. The rationale is that since the seller took the money, and the purchaser used the land with his consent after he attained the age of twenty without his protest, the acquisition of the property by the purchaser is confirmed, because the seller showed his appreciation of his sale.

A drunken man is considered to be responsible for his actions. A sale, a purchase or a present involving him is binding. If, however, his drunken state approaches that of Lot- i.e., he is so drunk that he does not realize what he is doing - his deeds are of no consequence. It is as if he were a mentally incompetent person or a child below the age of six.

When a person sells landed property or movable property to a colleague and someone acquires the property on the purchaser's behalf without the purchaser's knowledge, the option is given to the purchaser. If the purchaser desires to acquire the property, the seller cannot retract. If the purchaser does not desire to acquire the property, the property returns to its original owner.

Therefore, a deed of sale can be written for a seller even when the purchaser is not present. The purchaser, however, is always required to pay the scribe's fee. This applies even if a person sells his field because it is of inferior quality.

Similarly, when a Canaanite servant buys or sells property, or whether he gives a present or a present is given to him, the option is given to the servant's owner. If he desires to perpetuate the servant's act, the servant's acts are binding. If the master does not grant his consent, the servant's acts are nullified entirely.

The master may perpetuate or nullify the servant's act with merely a verbal statement. It is not necessary that he confirm his decision with a kinyan.

Similarly, when a woman sells or gives a present - whether of property belonging to her husband, property defined as nichsei tzon barzel that she brought him, property that he designated for her in her marriage contract, or property defined as nichsei m'log, whether landed property or movable property - the option is given to her husband. This ruling also applies if she purchases property or if she is given a present. If her husband desires to perpetuate the transfer, it is binding. If he desires to nullify it, it is nullified entirely.

Different rules apply when a husband sells or gives away property to which his wife shares a connection - e.g., land that she brought to him that was recorded in her marriage contract, land that he designated for her in consideration of goods she brought to the marriage, or property that he designated for her in her marriage contract. Even though the purchaser has the woman confirm her husband's deeds with a kinyan, whatever he has done is nullified, because she may rationalize her actions, stating: "I did it only to generate satisfaction for my husband."

If the husband sold or gave as a present nichsei m'log, whether landed property or movable property, the option is granted the woman. If she desires to nullify the sale, she may. If, however she confirms her husband's actions, the purchaser acquires the property.

The following rule applies when a husband sells movable property that is classified to be nichsei tzon barzel or movable property that he gave his wife from his own property. Although he does not have the right to do so, if he transgresses and sells or gives away such property, it is acquired by the purchasers, and his wife may not expropriate it from them.

Similarly, the husband has the right to sell all of his property, even though it is under lien to his wife's marriage contract. If she is later granted the right to expropriate the property, she will expropriate it. This applies unless she first wrote a disclaimer for the purchaser, and confirmed it with a kinyan.

When a woman sells or gives nichsei tzon barzel to her husband, he does not acquire the property. Instead, she may expropriate it from him, as explained in Hilchot Ishut.

When a court sells or purchases property on behalf of orphans - whether landed property or movable property - both the purchase and sale are binding. If, however, it gives the orphans' property away as a present, the gift is of no consequence. The rationale is that a person may not give away something that does not belong to him.

The same principles apply with regard to an orphan's guardian, whether a guardian appointed by the court or one appointed by the orphan's father before his death.

When a person sells or gives away property on the Sabbath - and needless to say, on the holidays - although he is punished by stripes, his deeds are binding.

Similarly, when a person enters into a kinyan chalifin on the Sabbath, the kinyan is binding. After the Sabbath, a legal record may be composed and the property transferred.