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Mechirah - Chapter 17

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Mechirah - Chapter 17

1There are four states applicable with regard to a seller: a) The seller sold wheat assuring the purchaser that it was of a high quality, and it was discovered to be of a low quality. In such an instance, the purchaser may retract, but not the seller.1 b) If the purchaser convinced the seller2 that the wheat was of a low quality, and it was discovered to be of a high quality. In such an instance, the seller may retract, but not the purchaser.אאַרְבַּע מִדּוֹת בַּמּוֹכְרִין: מָכַר לוֹ חִטִּים יָפוֹת וְנִמְצְאוּ רָעוֹת - הַלּוֹקֵחַ יָכוֹל לַחֲזֹר בּוֹ, וְלֹא הַמּוֹכֵר. רָעוֹת וְנִמְצְאוּ יָפוֹת - הַמּוֹכֵר יָכוֹל לַחֲזֹר בּוֹ, וְלֹא הַלּוֹקֵחַ.
c) If the produce was said to be of a low quality, and it was discovered to be of a low quality, but not of the absolutely lowest quality, or d) he assured him that it was of a high quality, and it was discovered to be of a high quality, but not of the absolutely highest quality, we see if there was an unfair gain of one sixth of its value. If there was, neither may retract, but the unfair gain must be returned.רָעוֹת וְנִמְצְאוּ רָעוֹת, יָפוֹת וְנִמְצְאוּ יָפוֹת, אַף עַל פִּי שֶׁאֵינָן יָפוֹת שֶׁאֵין לְמַעְלָה מֵהֶן, וְלֹא רָעוֹת שֶׁאֵין לְמַטָּה מֵהֶן, וַהֲרֵי יֵשׁ שָׁם הוֹנָיָה שְׁתוּת - אֵין אֶחָד מֵהֶם יָכוֹל לַחֲזֹר בּוֹ, אֶלָא קָנָה וּמַחֲזִיר הוֹנָיָה.
2If, however, a person claims to be selling red wheat and in fact, it is white, white wheat and in fact, it is red, olive wood and in fact, it is from a wild fig tree, or wild fig wood and in fact, it is from an olive tree, wine and it is discovered to be vinegar, vinegar and it is discovered to be wine, both the seller and the purchaser can retract.3 For the object of the sale is not of the type that the seller stated he was selling.4 Similar principles apply in all analogous situations.באֲבָל הַמּוֹכֵר חִטִּים שְׁחַמְתִּית וְנִמְצֵאת לְבָנָה, אוֹ לְבָנָה וְנִמְצֵאת שְׁחַמְתִּית, עֵצִים שֶׁל זַיִת וְנִמְצְאוּ שֶׁל שִׁקְמָה, שֶׁל שִׁקְמָה וְנִמְצְאוּ שֶׁל זַיִת, יַיִן וְנִמְצָא חֹמֶץ, חֹמֶץ וְנִמְצָא יַיִן - כָּל אֶחָד מִשְּׁנֵיהֶן יָכוֹל לַחֲזֹר בַּחֲבֵרוֹ, שֶׁאֵין זֶה הַמִּין שֶׁאָמַר שֶׁיִּמְכֹּר לוֹ. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה.
3When a person sells wine to a colleague and the purchaser transfers it to his own containers, even if it turns into vinegar immediately, the seller is not held responsible for it.5 This law applies even if the purchaser says: “I am purchasing it to use for cooking.”6גהַמּוֹכֵר יַיִן לַחֲבֵרוֹ, וּנְתָנוֹ הַלּוֹקֵחַ בְּקַנְקַנִּים וְהֶחְמִיץ מִיָּד - אֵינוֹ חַיָּב בְּאַחֲרָיוּתוֹ, וְאַף עַל פִּי שֶׁאָמַר לוֹ 'לְתַבְשִׁיל אֲנִי צָרִיךְ לוֹ'.
If the seller knew that his wine was turning sour, the transaction is considered to have taken place under false pretenses.7וְאִם יָדַע שֶׁיֵּינוֹ מַחְמִיץ, הֲרֵי זֶה מֶקַּח טָעוּת.
Different laws apply if a person sold a colleague wine, and it remained in the seller’s containers and turned into vinegar.מָכַר לוֹ יַיִן, וַהֲרֵי הוּא בְּקַנְקָנָּיו שֶּׁל מּוֹכֵר וְהִחְמִיץ:
If the purchaser told the seller: “I need this for cooking,”8 and the wine turns sour, the purchaser may return it and say: “Here is your wine and your containers. I did not buy it to drink, but rather to use for cooking a little bit at a time.”9אִם אָמַר לוֹ 'לְמִקְפָּה אֲנִי צָרִיךְ' – מַחֲזִיר, וְאוֹמֵר לוֹ 'הֲרֵי יֵינְךָ וְקַנְקַנֶּיךָ, שֶׁאֲנִי לֹא קָנִיתִי לִשְׁתּוֹתוֹ אֶלָא לְבַשֵּׁל מְעַט מְעַט'.
If the purchaser did not say: “I need this for cooking,” he may not return it.10 For the owner may tell him: “Why didn’t you drink it immediately. You should not have left it until it turned sour.”11וְאִם לֹא אָמַר לוֹ 'לְמִקְפָּה הוּא' - אֵינוֹ יָכוֹל לְהַחֲזִיר, שֶׁהֲרֵי אוֹמֵר לוֹ 'לָמָּה לֹא שָׁתִיתָ אוֹתוֹ, וְלֹא הָיָה לְךָ לְשַׁהוֹתוֹ עַד שֶׁיַּחְמִיץ'.
4The following rules apply when a person sells a barrel of beer to a colleague in a barrel belonging to the seller.12 If the beer becomes like vinegar within the first three days13 after the sale, the change is considered to have taken place in the seller’s domain14 and he must return the money he received. From that point onward, the change is considered to have taken place in the purchaser’s domain.15דהַמּוֹכֵר חָבִית שֶׁל שֵׁכָר לַחֲבֵרוֹ, וְהֶחָבִית שֶׁל מּוֹכֵר, וְהֶחְמִיצָה בְּתוֹךְ שְׁלוֹשָׁה יָמִים הָרִאשׁוֹנִים - הֲרֵי זֶה בִּרְשׁוּת הַמּוֹכֵר, וּמַחֲזִיר אֶת הַדָּמִים; מִכָּאן וְאִילָּךְ, בִּרְשׁוּת הַלוֹקֵחַ.
5The following rules apply when a person sells a barrel of wine to a colleague who intends to sell it little by little. If half or a third of the wine becomes sour, it may be returned to the seller.16ההַמּוֹכֵר חָבִית שֶׁל יַיִן לַחֲבֵרוֹ כְּדֵי לְמָכְרָהּ מְעַט מְעַט, וְהֶחְמִיצָה בְּמַחֲצִיתָהּ אוֹ בִּשְׁלִישָׁהּ - חוֹזֶרֶת לַמּוֹכֵר.
If, however, the purchaser changes the hole for the spout,17 or the market day came and he was lax and did not try to sell the wine, it is considered to be in the purchaser’s domain.18וְאִם שִׁנָּה הַלּוֹקֵחַ הַנֶּקֶב שֶׁלָּהּ, אוֹ שֶׁהִגִּיעַ יוֹם הַשּׁוּק וְשָׁהָה וְלֹא מָכַר - הֲרֵי הִיא בִּרְשׁוּת הַלּוֹקֵחַ.
Similar laws apply when a person accepts a barrel of wine from a colleague with the intent of transporting it to a particular destination and selling it there.19 If the price of the wine decreases or it becomes sour before it reaches the destination,20 it is considered to be in the purchaser’s domain, for the barrel and the wine are his. Similar principles apply in all analogous situations.וְכֵן הַמְּקַבֵּל חָבִית שֶׁל יַיִן מֵחֲבֵרוֹ כְּדֵי לְהוֹלִיכָהּ לְמָקוֹם פְּלוֹנִי וּלְמָכְרָהּ שָׁם, וְקֹדֶם שֶׁתַּגִּיעַ לְשָׁם הוּזַל הַיַּיִן אוֹ הֶחְמִיצָה - הֲרֵי זוֹ בִּרְשׁוּת הַמּוֹכֵר, מִפְּנֵי שֶׁהֶחָבִית וְהַיַּיִן שֶׁלּוֹ. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה.
6When a person tells a colleague: “I am selling you fragrant21 wine,” he is responsible for the wine to retain its fragrance until the holiday of Shavuot.22והָאוֹמֵר לַחֲבֵרוֹ 'יַיִן מְבֻשָּׂם אֲנִי מוֹכֵר לָךְ, חַיָּב לְהַעַמִיד לוֹ עַד הָעֲצֶרֶת'.
If he tells him: “I am selling you aged wine,” he must give him wine from the previous year. If he mentions vintage wine, it must be in its third year and must retain its flavor without turning sour until the holiday of Sukkot.23אָמַר לוֹ 'יַיִן יָשָׁן אֲנִי מוֹכֵר לָךְ', נוֹתֵן לוֹ מִשֶּׁל שָׁנָה שֶׁעָבְרָה; 'מְיֻשָּׁן', מִשֶּׁל שָׁלוֹשׁ שָׁנִים. וְצָרִיךְ שֶׁיַּעֲמֹד וְלֹא יַחְמִיץ עַד הֶחָג.
In a locale where there is a well-known custom, everything is determined by the local custom.24וּבְמָקוֹם שֶׁיֵּשׁ שָׁם מִנְהָג יָדוּעַ, הַכֹּל כְּמִנְהַג הַמְּדִינָה.
7When a person tells a colleague: “I am selling you this cellar of wine for cooking,”25 or merely “... a cellar of wine,” the purchaser accepts the fact that the wine from ten containers out of one hundred will not be of as high a quality and will already have begun to sour.זהָאוֹמֵר לַחֲבֵרוֹ 'מַרְתֵּף זֶה שֶׁל יַיִן אֲנִי מוֹכֵר לְךָ לְמִקְפָּה', אוֹ שֶׁמָּכַר לוֹ מַרְתֵּף שֶׁל יַיִן סְתָם - הֲרֵי הַלּוֹקֵחַ מְקַבֵּל עָלָיו עֲשָׂרָה קַנְקַנִּים בְּכָל מֵאָה שֶׁלֹּא יִהְיֶה יֵינָם טוֹב, אֶלָא כְּבָר הִתְחִיל לְהִשְׁתַּנּוֹת.
If more wine changes flavor, he has not acquiesced.26יָתֵר עַל זֶה לֹא יְקַבֵּל.
8If the seller told the purchaser: “I am selling you a cellar of wine for cooking,”27 or he told him: “I am selling you a barrel of wine,”28 he must provide him with wine that is entirely of high quality and fit to be used for cooking.חאָמַר לוֹ 'מַרְתֵּף שֶׁל יַיִן לְמִקְפָּה אֲנִי מוֹכֵר לְךָ', אוֹ שֶׁאָמַר לוֹ 'חָבִית שֶׁל יַיִן אֲנִי מוֹכֵר לָךְ' - נוֹתֵן לוֹ יַיִן שֶׁכֻּלּוֹ יָפֶה וְרָאוּי לַתַּבְשִׁיל.
If he told him: “I am selling you this cellar of wine,” he should provide him with wine similar to that sold in a store - i.e., of average quality, neither bad nor good.29אָמַר לוֹ 'מַרְתֵּף זֶה שֶׁל יַיִן' - נוֹתֵן לוֹ יַיִן הַנִּמְכָּר בְּחָנוּת, שֶׁהֲרֵי הוּא בֵּינוֹנִי לֹא רָע וְלֹא יָפֶה.
If he told him, “I am selling you this cellar,” and did not mention that it contained wine, the purchaser must accept it, even if it was all vinegar.30 Similar principles apply in all analogous situations.אָמַר לוֹ 'מַרְתֵּף זֶה אֲנִי מוֹכֵר לָךְ', וְלֹא הִזְכִּיר יַיִן - אַפִלּוּ כֻּלּוֹ חֹמֶץ, הִגִּיעוֹ. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה.
9When a person tells a colleague: “I am selling you a wooden kneading tray,” or “I am selling you a beam for an olive press,” he may not give him a piece of wood that is fit to have a kneading tray hewn out from it, or a beam that is fit to be made into a beam for an olive press. Instead, he must give him a kneading tray that has already been fashioned or a beam for an olive press that has already been fashioned, one that any person seeing it will say: “This is a kneading tray,” or “this is a beam for an olive press.” Similar principles apply in all analogous situations.טהָאוֹמֵר לַחֲבֵרוֹ 'עֲרֵבָה שֶׁל עֵץ אֲנִי מוֹכֵר לָךְ', אוֹ 'קוֹרַת בֵּית הַבַּד אֲנִי מוֹכֵר לָךְ' - אֵינוֹ נוֹתֵן לוֹ עֵץ שֶׁרָאוּי לַחְפֹּר בּוֹ עֲרֵבָה, אוֹ קוֹרָה שֶׁרְאוּיָה לְקוֹרַת בֵּית הַבַּד, אֶלָא עֲרֵבָה בְּצוּרָתָהּ אוֹ קוֹרַת בֵּית הַבַּד בְּצוּרָתָהּ, שֶׁכָּל הָרוֹאֶה אוֹמֵר 'זוֹ עֲרֵבָה' אוֹ 'זוֹ קוֹרַת בֵּית הַבַּד'. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה.

Quiz Yourself on Mechira Chapter 17

Footnotes
1.

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 233:1) explain that this law applies even if the difference in value between the two is less than a sixth. Although the laws of ona’ah do not apply, the wheat is not of the quality specified by the seller, the transaction is considered to have taken place under an erroneous premise, and the purchaser has the right to nullify it.
From the fact that the seller cannot retract [in contrast to the instances mentioned in the following halachah], we see that the transaction is not nullified entirely, for the seller does not have the right to retract.
The distinction between the two is that the articles that are mentioned in the following halachah are clearly of different types. In this instance, although the descriptions “high quality” and “low quality” do distinguish one article from another, the distinction is not as clearly defined.

2.

This addition is made on the basis of the gloss of the Maggid Mishneh.

3.

In this instance as well, the Maggid Mishneh states that the principals have the right to retract even though there was no difference in value between the two types of produce.

4.

The rationale is that both the purchaser and the seller can claim that the transaction was undertaken under an erroneous premise.

5.

It would appear that the wine had already begun to sour while it was in the possession of the seller. Nevertheless, he is not held liable, because he can claim that it soured because of the containers that belonged to the purchaser (Bava Batra 98a).
Sefer Me’irat Einayim 230:10 states that this law applies even if the purchaser used new, clean containers. For it is possible the wine began to spoil when - and because - it was poured from the sealed containers of the seller.

6.

In which instance, a large quantity of wine will not be used immediately. For this reason, the wine should be of a quality that can be stored without turning sour. Nevertheless, since the responsibility for the spoilage can be attributed to the containers, the seller is not held responsible.

7.

And it is nullified. The Tur and the Ramah (Choshen Mishpat 230:5) state that this law applies only when the purchaser says that he needs the wine for cooking.

8.

Or if he told him: “I will drink it a little at a time [Shulchan Aruch (Choshen Mishpat 230:6)].”

9.

The purchaser is allowed to nullify the transaction, because the product that he received - wine that has soured - is not what he desired to purchase.

10.

The Kessef Mishneh explains that the Rambam rules that if the wine goes sour within three days, the seller is held responsible. The Tur and the Ramah (loc. cit.) maintain that everything depends on the local custom. If the wine became sour within the time one would assume that it would be drunk, the seller is liable. if it became sour afterwards, he is absolved from responsibility. See the following halachah and notes.

11.

Since initially the quality of the wine was acceptable, the seller is considered to have met his obligation, even though he knew that his wine might tum sour. He was not given any indication that the purchaser might set aside the wine for later use, and he therefore did not have to warn him (Maggid Mishneh).

12.

I.e., the beer was sold together with its container. If, however, the beer is transferred to a barrel belonging to the purchaser, the seller is no longer liable (Maggid Mishneh; Sefer Me’irat Einayim 230:14).

13.

The Tur (Choshen Mishpat 230) makes a distinction between wine and beer, stating that wine is more dependent on the fate of its owner. Therefore, after it remains in the purchaser’s possession for a day, it can be said that the purchaser’s fate caused it to sour. Beer, by contrast, is not as dependent on its owner’s fate. Hence, a three-day period is granted.
The Kessef Mishneh maintains that the Rambam does not make such a distinction. The Bayit Chadash (Ciwshen Mishpat 230) differs and maintains that the Rambam also follows the reasoning stated by the Tur.

14.

For the chemical process had already begun before the sale. At the time of the sale, it had not become noticeable yet [Tur (loc. cit. 230)].

15.

Therefore, he and not the seller must suffer the loss.

16.

Since the purchaser informed the owner that he would not be selling the wine all at once, the seller should have given him wine that would keep for an extended time.

17.

I.e., he makes a different hole to which to move the spout. This could cause the wine to begin to sour. The commentaries question why this factor is not mentioned in Halachah 3 as well.

18.

And he may not return it if it sours.

19.

The Rambam (based on Bava Batra 98a) is referring to a particular business convention. A person would purchase wine or other merchandise from a merchant who made both wholesale and retail sales, on the condition that he sell it in another location. He would pay the wholesaler after he returned. Thus, although he purchased the wine, since he purchased it with the intent of transporting it, the wholesaler would have to provide him with wine that would keep over the duration of this journey.

20.

Since the wholesaler would protest if the purchaser sold it in his locale, for it would prevent him from making retail sales, he must accept responsibility that the wine retain its flavor until it reaches its destination.

21.

Significantly, when quoting this law, the Shulchan Aruch (Choshen Mishpat 230:10) substitutes mevushal (“boiled”) for mevusam (“fragrant”).

22.

After Shavuot, the summer heat reaches its peak and it is possible for even fine wine to lose its flavor and aroma. In Eretz Yisrael, the grape harvest takes place during the month of Tishrei, so the wine must retain its flavor for approximately eight months.
The Tur and the Ramah (Choshen Mishpat 230:10) state that this law applies only when the wine is kept in the seller’s barrels.

23.

Since wine was usually made during Tishrei, the intent is that the wine must retain its flavor for a full three years (Maggid Mishneh).

24.

Even when the local custom differs with the above guidelines, the local custom takes precedence. The rationale is that any stipulation made by the participants in a business transaction is binding. Since the custom is well-known, it is assumed that both parties agreed to it and considered it as part of their business transaction. See Chapter 18, Halachah 12.

25.

The rationale for this ruling is that by saying “this,” the seller indicates that he is selling the wine as is, alluding to the fact that there is something amiss with the wine that he is selling. Hence, although the seller knows that the wine will be used for cooking and therefore must retain its flavor over time, the purchaser must be willing to accept that a certain amount is of lesser quality (Sefer Me’irat Einayim 230:1).

26.

And may return it.

27.

By stating that the wine is fit for cooking, the seller implies that it is of high quality and will retain its flavor over time.

28.

Even though the seller did not say “for cooking,” since he is selling him only one barrel, that barrel must be of high quality (Maggid Mishneh).
Significantly, the standard texts of the Shulchan Aruch (Choshen Mishpat 230:2) write “barrels,” using the plural, but that appears to be a printing error.

29.

From the Rambam’s wording here and in his Commentary on the Mishnah (Bava Batra 6:2), the intent appears to be wine of ordinary quality. The Tur and others interpret this to be referring to wine that has already begun to sour.

30.

Since the seller did not mention that it was wine, nor that it would be used for cooking, the purchaser should have investigated the item he was purchasing before completing the transaction.
Kin’ at Eliyahu mentions that in all the transactions mentioned above, the laws of ona’ah apply. Thus, if the purchaser pays one sixth more than the value of the product purchased, that sixth should be returned to him, and if the unfair gain is more than a sixth, the transaction can be nullified.

The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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Vowelized Hebrew text courtesy Torat Emet under CC 2.5 license.
The text on this page contains sacred literature. Please do not deface or discard.