Shechenim - Chapter 14

For the seller cannot be forced to suffer the inconvenience of waiting for the money. Offering the neighbor the option of purchasing the property is itself a favor and need not cause the seller discomfort.

For such a minor delay is not considered a matter of substance.

The Shulchan Aruch (Choshen Mishpat 175:25) states that when the neighbor did not know of the purchase price before he was called to court, he is given the chance to go home and bring funds even if we would not presume that he has such resources at hand.

I.e., this is not referring to an instance where there is a difference in the monetary value of the coins. It is merely that the purchaser’s money possesses a slight advantage in the eyes of a money trader. (To state the matter in contemporary terms: The purchaser was prepared to pay for the property in American dollars, while the neighbor was prepared to pay in Israeli shekels. Even when the value is the same, the seller may prefer receiving payment in dollars rather than shekels.) The seller is not required to subject himself to even such discomfort to afford the neighbor the opportunity of purchasing the property.

The Beit Yosef and the Ba’er HaGolah (Choshen Mishpat 175:26) explain that this law applies even in the diaspora. The Or Sameach states that this is reflected in a comparison to the Rambam’s wording in Chapter 6, Halachah 2, where he explicitly mentions “the settlement of Eretz Yisrael.”
Sefer Me’irat Einayim 175:43 explains that we are ordinarily not concerned with regard to the settlement of the land in the diaspora. Here, however, the intent is that the property will be of more permanent benefit to the purchaser than to the neighbor, and therefore it is granted to him.

As stated in Chapter 13, Halachah 10, if the neighbor himself serves as the agent who makes the sale, he forfeits his rights. In the instance described here, he can claim that he did not think that the sale would actually take place, and hence did not mention his desire to purchase the property. Alternatively, he can explain that he felt that the purchaser could negotiate a better price than he would himself (Sefer Me’irat Einayim 175:50).

Note the Rambam’s statements in Hilchot Mechirah 5:14, where he explains that kinyanim that involve mere promises are not substantial and therefore not legally binding. Nevertheless, in this instance, since the neighbor does have rights to this property, the kinyan is considered to be of substance and binding (Ibid. :51).

When citing this law, the Shulchan Aruch (Choshen Mishpat 175:29) quotes the Rambam’s words, but adds another opinion that states that if the neighbor explicitly waives his rights in the presence of witnesses, he is no longer given the opportunity to exercise them.

Through such activities, he clearly acknowledges the purchaser as the owner of the property.

In which instance, had he a genuine interest in the property, he would have protested the changes being made to it.

Surely, this law applies if he makes a verbal statement that he does not desire the property and then decides to retract the statement.
In his gloss on Bava Metzia 108a, Rabbenu Asher writes that from the Rambam’s words, it appears that if the neighbor does not see the purchaser using the land and therefore doe not protest, he can exercise his right to displace him at a far later date. Rabbenu Asher does not accept this conclusion. The Kessef Mishneh takes issue with Rabbenu Asher, explaining that – as is obvious from the following halachah – this surely was not the Rambam’s intent. Instead, even the Rambam agrees that the protest must be made within a reasonable time after the sale.

And therefore was unable to protest the sale and displace the purchaser at the time the property was transferred.
With regard to a minor, based on Chapter 13, Halachah 13, we are forced to say that we are speaking of an instance in which the court did not see the purchase as of benefit to the minor.

See also the responsa of the Maharam Alshacar, Responsum 118, which quotes a responsum of the Rambam that states that if a neighbor was in the city at the time a property was sold, but did not respond, and afterwards claimed that he did not know about the sale, his claim is not heeded. We assume that he would have heard about the sale from the local gossip and would have protested if he truly desired the property. There are, however, other opinions that do not accept this ruling.
Note also the ruling of the Ramah (Choshen Mishpat 175:34), which states that when a person desires to sell a property, he should announce the matter in court, and the court should arrange that the neighbor be notified to prevent any misunderstanding from arising.

And he would not desire to invest in property that he could not be sure would remain his.

100 zuz.

He is selling the property at a low price because he is in urgent need of funds [Shulchan Aruch (Choshen Mishpat 175:7)].
If there is a dispute between the purchaser and the neighbor whether or not the seller would have sold the property at such a price to others, the burden of proof is on the neighbor [Shulchan Aruch (Choshen Mishpat 175:7)].

The term “gift” is not being used in its halachic context, for, as stated in Chapter 13, Halachah 1, a neighbor is not given the right to displace the recipient of a gift.

As stated in Hilchot Mechirah 13:5, according to the Rambam – despite the unfair nature of the sale – it is binding because the laws of ona’ah do not apply with regard to landed property.
The commentaries cite this law as an indication that description of the purchaser as the neighbor’s agent is not a hard and fast rule. For, as stated in Hilchot Sh’luchin V’Shutafin 1:2, when an agent errs, the transaction he carried out is nullified, and yet in this instance the sale is binding. The rationale is that the purchaser was, in truth, buying the property for himself, and he desired that his purchase remain binding.

And, as the Rambam continues to explain, the seller will return the additional funds.

The Sefer Me’irat Einayim 175:15 raises a question whether the neighbor can require that the oath be taken even if he merely suspects – but is not certain – that deception was perpetrated. The Siftei Cohen 175:8 maintains that the neighbor must be certain that deception was involved to require an oath.

A Torah scroll or tefillin.
The Maggid Mishneh compares this situation to one described in Hilchot Malveh V’Loveh 13:3, where a lender who was given security for his loan desires to sell the security to collect payment. He is required to take an oath holding a sacred article because he is not making a claim concerning the value of the security, but rather concerning the size of the loan. Here too, the purchaser is not endeavoring to clarify the value of the property, but instead, the price that he paid for it.

Our translation is based on authentic manuscripts of the Mishneh Torah and the text cited by the Shulchan Aruch. The meaning of the wording in the standard published texts of the Mishneh Torah is difficult to comprehend.
The Maggid Mishneh cites a different version of the Mishneh Torah in which the text reads “even if the neighbor does not know.” I.e., the neighbor can require an oath even when he is not certain. The rationale is that it is unlikely that the person purchased a property for twice its value.

I.e., he paid him back the other 100 on a later occasion.

A less severe oath that does not require that a sacred article be held. Since there are witnesses, the oath he takes is of lesser severity.

But his property does not border on it.

This is one of the ways in which honor is given to a Torah scholar.

We have used this translation because throughout the text we have used the term “neighbor” to connote a person who e property borders on the property being sold. According to some authorities, living in physical proximity is, however, not sufficient to cause one to be given these privileges. Instead, the two must be close in a personal sense as well [Ramah (Choshen Mishpat 175:50)].

In this context, Bava Metzia 108b quotes Proverbs 27:10, “A close neighbor is preferable to a far-away brother.”

This follows the same principle and logic motivating the rights given a neighbor.

Note Sefer Me’irat Einayim 175:91, which quotes certain authorities who grant a Torah scholar the right to displace the purchaser, and questions why this view was not cited by Shulchan Aruch or the Ramah.