Rambam - 1 Chapter a Day

The Radbaz (Responsum 503) maintains that this type of transaction, chalifin, is a Rabbinic ordinance. Kiryat Sefer, however, maintains that such. transactions are binding according to Scriptural Law.

The contrast to the ruling in Halachah 6 is explained in the notes on that halachah. There are, however, some authorities who maintain that produce cannot be acquired through chalifin at all.

See Chapter 13, Halachah 1, which states that the laws of ona’ah, overcharging a customer, do not apply with regard to such a transaction.

I.e., even if it is in another place entirely and not within easy reach of the person acquiring it, and even if it is in the seller’s domain.

Thus, if the article is damaged by forces beyond the seller’s control, or if it diminishes in value, the purchaser cannot retract.

Even though - as opposed to the situation mentioned in Halachah 3 - each of the persons transferring property is concerned about the price, and is not merely making a transfer on whim, it is not necessary for them both to perform meshichah. Once one performs meshichah, both dimensions of the transaction are concluded.

I.e., the donkey remains the possession of its original owner.
The Shulchan Aruch (Choshen Mishpat 203:2) quotes the opinion of the Rashba, who maintains that this ruling applies in situations similar to the one described - i.e., with regard to an entity like the donkey, which cannot be divided. If, however, the article can be divided - e.g., one exchanged a cow and a lamb for a measure of wheat - when one performs meshichah on the cow, one acquires an equivalent measure of wheat.

For he did not perform meshichah on all the objects that he would acquire.

In his Commentary on the Mishnah (Kiddushin 1:6), the Rambam writes that generally when coins are involved in a transaction, the people involved focus on the monetary value of the coins. In this instance, however, since the person neither counted nor weighed the coins, he is treating them as mere pieces of metal, and they should therefore be regarded as slabs of gold or silver.

The Kessef Mishneh and the Ramah (Choshen Mishpat 199:1) quote the interpretation of Rashi (Bava Metzia 46b), who states that even if the purchaser knows the value of the coins he is giving the seller, as long as the seller is unaware of their value, this law applies.

As stated in Chapter 13, Halachah 2, there is a difference between this law and the law stated in Halachah 1, with regard to the principle of ona’ah. See the notes on that halachah.

I.e., although generally payment of money is not sufficient and meshichah is necessary to complete a transaction, as stated in Chapter 3, Halachah 1, our Sages did not institute such a requirement in this instance because it is an abnormal situation.

Through meshichah or another valid kinyan.

Rabbi Akiva Eiger questions why the Rambam mentions a servant in this halachah. The point of this halachah is that in the unique situation described, a kinyan can be completed by the payment of money, and meshichah is not necessary. With regard to the acquisition of servants, this rule applies in all instances, as the Rambam states in Chapter 2, Halachah 1.

The Ra’avad differs with the Rambam with regard to this ruling, offering an alternate interpretation of Kiddushin 28a, the Rambam’s source. The later authorities explain that the Rambam’s ruling is based on the tradition of Rabbenu Chanan’el and Rabbenu Yitzchak Alfasi. It is also quoted by the Shulchan Aruch (Choshen Mishpat 199:2).
The commentaries do, however, raise a theoretical question with regard to this ruling. Kiddushin 47a states that when a person consecrates a woman by forgoing a debt that she owes him, the consecration is not binding, because he is not giving her anything at the present time; the money for the debt was given previously. Why then is this transaction binding? Not only was meshichah not performed, but there was not even a transfer of money.
The Maggid Mishneh explains that in this instance, since the debt originated in the sale of an article and is being nullified by the sale of an article, our Sages considered it as if the two objects were exchanged for each other, as has been explained in Halachah 1.
The Ramah (based on the gloss of the Maggid Mishneh) interprets the passage from Kiddushin differently and maintains that the transaction is effective only when the purchaser states: “Sell it to me for the satisfaction you receive in having your debt nullified.” If, however, he says: “Sell it to me for the debt,” the transaction is not effective.

In contrast to the previous law in this halachah, our Sages considered this a more common situation and imposed their decree, requiring property to be acquired by meshichah (Maggid Mishneh). The seller is, nevertheless, obligated to receive the adjuration of mi shepara. (See Chapter 7, Kessef Mishneh.)

This means of acquisition is mentioned in the Bible, as Ruth 4:7 states: “Now this is the custom from former times in Israel concerning... exchange to confirm all manner of transactions. A man pulled off his shoe and gave it to his colleague. This was the manner of recording in Israel.”
This transaction appears to be an extension of the principle of exchange mentioned at the beginning of the chapter. Just as the exchange of an article concluded a transaction, the symbolic exchange mentioned in this halachah concludes a transaction.
The Tur and the Ramah (Choshen Mishpat 195:1) write that it is not customary to make a verbal statement at the time of the exchange, because the terms of the transaction have already been negotiated.

It is not necessary that the exchange be observed by witnesses for the transaction to be finalized (Halachah 9).

With regard to actual money, any value less than a p’rutah is not considered of consequence. A utensil worth less than a p’rutah is, however, considered of value.

Although produce can be used to effect an exchange of one type of article for another as stated in Halachah 1, it is not effective in bringing about the symbolic exchange mentioned in this halachah. The difference between the two is that in the exchange mentioned in Halachah 1, the person is exchanging two objects that share the same value, while in this halachah the exchange is merely symbolic in nature (Maggid Mishneh).

For generally when a coin is used, it is not considered to be an object in its own right, but a unit of currency (Bava Metzia 45b).
The Tur and the Ramah (Choshen Mishpat 203:8) state that in this context an animal is considered to be a utensil and may be used for this exchange. Sefer Me’irat Einayim 195:8 states, however, that other entities in their natural form - e.g., stones - are not considered to be utensils, even if they have some value. See Siftei Cohen I95:4, who states that these two rulings contradict each other.

For in the narrative from Ruth cited above, it was Boaz, the purchaser, who removed his shoe and gave it to the seller.

The Shulchan Aruch (Choshen Mishpat 195:3) notes that this applies even if the purchaser was not present at the time.
The Even HaEzal cites as the source for this concept the law (Kiddushin 7a) that explains that a woman can be consecrated if she tells a man: “Give a p’rutah to so and so, and I will be consecrated to you.” The motif follows that of the sale of a Hebrew servant by a court, where the servant is acquired although the money is paid to the court.
In actual practice, this law is often applied. For when a transaction is completed using a kinyan sudar (a form of chalifin), more often than not the handkerchief (see Note 24) that is exchanged belongs to the Rabbi conducting the transaction or to the witnesses.

This is the most common manner in which chalifin is performed. A handkerchief or similar article is given to the seller, he lifts it up to show his acquisition of it and then returns it to its owner.

See Hilchot Zechiyah UMatanah 3:9, where this concept is discussed.

This law is derived from comparison to a bill of divorce. See Hilchot Gerushin 5:16. The Maggid Mishneh and the Ramah (Choshen Mishpat 195:4) quote the Rashba, who maintains that the comparison to a bill of divorce is not appropriate and rules that the person must hold at least three fingerbreadths of the garment for this transaction to be effective.

The piece of fabric must be three fingerbreadths by three fingerbreadths, as explained in Hilchot Keilim 22:1.

Although the Ra’avad accepts the fundamental premise to be explained by the Rambam in this halachah, he differs with the Rambam with regard to chalifin, explaining that Bava Batra 40a requires that such a transaction be observed by witnesses. The Maggid Mishneh substantiates the Rambam’s ruling, explaining that Bava Batra, op. cit., mentions the need for two witnesses so that a transaction confirmed by chalifin can be immediately recorded in a legal document.
The Shulchan Aruch (Choshen Mishpat 195:1) cites the Rambam’s ruling. The Ramah adds that even if a transaction was confirmed by chalifin in the presence of unacceptable witnesses, when both parties admit that the transaction has taken place, it is binding.

The Rambam’s wording perhaps alludes to a difference between the function of witnesses with regard to monetary law and with regard to the laws of marriage and divorce. As the Rambam explains in this halachah, witnesses are not necessary to finalize the transaction with regard to monetary law. They are important only to clarify if a transaction took place in the event of a dispute between the parties involved.
With regard to the laws of marriage and divorce, by contrast, witnesses are necessary for the marriage bond to be established or severed. Even if both parties admit that a marriage or a divorce took place in private, it is of no consequence.

In one of his responsa, the Rambam writes that even if the parties are still sitting together, if they have concluded their discussion of the matter, neither can retract.

The Tur (Choshen Mishpat 126) explains the rationale for this distinction: Certain of the other kinyanim - meshichah, lifting up the article, transferring it or manifesting ownership over it - involve taking physical possession of the article being acquired. Others - e.g., the payment of money or the transfer of a legal document - involve an act that causes the seller to withdraw his ownership entirely. This does not apply with regard to chalifin.
Siftei Cohen 195:9 adds further explanation. The other kinyanim are generally not made on the spur of the moment. A kinyan chalifin, by contrast, since it can be made merely through the exchange of a handkerchief, may be made hastily, without full consideration of the issue. Therefore, an opportunity was granted to retract.

A divorce requires a formal bill of divorce. Once that is given, nothing else is required. With regard to the other matters mentioned in this halachah, nothing more than a verbal statement is necessary; there is no need to affirm one’s commitment with a deed of contract.

A kinyan can be effective with regard to a financial commitment or with regard to either landed or movable property. The matters that the Rambam mentions do not fall into either of these categories.

As the Ra’avad mentions, the Rambam is speaking here of a commitment to establish a partnership, but not a partnership agreement itself. The Rambam discusses how a partnership agreement can become binding in Hilchot Sh’luchim V’Shutafin]

I.e., if a person makes a kinyan to affirm a commitment that a colleague can partake of the fruits of his orchard, that commitment is binding.