Mechirah - Chapter 6

Chapter 5, Halachah 6.

The rationale is that whenever a coin is used in a transaction, it is considered to be a measure of legal tender and not an ordinary piece of metal.

Chapter 5, Halachah 1. A slab of metal cannot itself be used to bring about a kinyan chalifin, because it is not a utensil. And a utensil is necessary for chalifin to be effective.

When viewed together with the next halachah, the Rambam’s statements can be seen as establishing a double standard with regard to gold coins. With regard to silver coins, gold coins are considered to be “produce”; but with regard to other movable property, they are considered to be legal tender.
In taking this position, the Rambam continues the tradition of his teacher, Rabbenu Yitzchak Alfasi (see his Halachot, Bava Metzia, Chapter 4) and the latter’s mentor, Rabbenu Chanan’el. This position was disputed by Rav Hai Gaon, who maintains that gold coins are always considered to be “produce.” The Rambam’s view is followed by the Shulchan Aruch (Choshen Mishpat 203:3).

Chapter 3, Halachah 1.

A coin of the Talmudic era.

I.e., as the Rambam states in the next halachah, they are considered to be movable property and must be acquired through meshichah. Only then is the transaction concluded.
Gold coins are given this status with regard to silver coins, because although gold is more valuable than silver, its value causes it to be a less popular means of exchange. Silver coins, by contrast, are the more commonly used type of coinage.

Because silver coins are more valuable, they are desired more than copper ones.

And the recipient lifted the gold up, thus taking it into his possession.

I.e., as a purchase, not as an exchange (chalifin). For coins can never be used for exchange.

Acquiring the gold is like acquiring any other movable property. It creates a financial obligation for the purchaser.

Note Sefer Me’irat Einayim 303:11, which states that in general, older coins are preferable to newer ones, but there are times when a person will desire newer coins.

Because a transaction is completed through taking possession of the movable property (in this case, the gold coin), and not by the payment of money (the silver).

The Tur and the Ramah (Choshen Mishpat 195:2) rule that such a coin is regarded like a utensil. According to this opinion, it may also be used for a kinyan chalifin.

Like produce - as opposed to coins, which cannot be acquired in this manner.

For like other movable property, it is their acquisition that completes a business transaction.

The Rambam is referring to kinyan agav, as discussed in Chapter 3, Halachah 8.

In which instance he acquires the coins by virtue of their presence within his domain (kinyan chatzer). One might ask: Why does the Rambam not mention the alternative of acquiring the coins through a kinyan agav?

If the coins are being acquired through a kinyan agav, they need not be on the landed property that is being acquired. They must, however, be a defined entity kept in a specific place.

This expression refers to a conclusion that the Rambam derived from his own logic, without an explicit source in the previous Rabbinic literature. In this instance, there are two sources in the Talmud (Bava Kama 104b and Bava Batra 77b) that deal with the question. They appear to contradict each other. Based on his logic, the Rambam concludes that kinyan agav is not effective.

For kinyan agav is effective only when a specific entity is involved. Since the debt is not a defined entity, it cannot be acquired through kinyan agav.

The Shulchan Aruch (Choshen Mishpat 126:1) states that this applies whether the lender is giving the debt to the third party as a gift, or he himself owes the third party money.

This applies even if the money that had been lent was already spent, and there is no object that is being transferred, but merely a non-specific monetary obligation.

The Maggid Mishneh explains that this refers even to the person who receives the debt. For example, if Reuven owed Shimon 100 dollars and Levi owed Reuven 100 dollars, should Reuven transfer Levi’s debt to Shimon in the manner described above, Shimon cannot demand payment from Reuven again. It is considered as if Reuven’s obligation to him has been met.

I.e., of monies that one owes the other.

In contrast to the previous instance, where a person transferred a debt owed to him, in this instance he is asking the person to undertake an obligation on his behalf. A mere verbal commitment is not sufficient for this obligation to become binding.

Even if Levi retracts with regard to the remainder of the obligation, Reuven is required to reimburse him for the money that he already spent on his behalf.

Nor does the purchaser acquire the actual note itself. Instead, the sale is considered to be a transaction performed in error, and the seller must return the purchaser’s money and the purchaser must return the promissory note [Shulchan Aruch (Choshen Mishpat 66:1)].
The Ramah adds that the purchaser may retain possession of the note until his money is returned. Moreover, if the seller (who is the lender) does not have the money to repay him, the debtor specified in the promissory note must pay him. For we apply Rabbi Natan’s principle of transferred responsibility - i.e., if a person who owes a colleague is himself owed money, the latter debtor can become responsible to the first creditor.

As explained in the following halachah, a kinyan such as meshichah or chalifin is effective only with regard to a specific entity that has a financial worth. Since the obligation of the debtor is not tied to any specific entity, it cannot be transferred through such a kinyan.

Who is the creditor mentioned in the promissory note.

The Shulchan Aruch (Choshen Mishpat 66:3) states that even when the seller makes a verbal statement to this effect and confirms it with a kinyan chalifin, the debt is not transferred until a written document is prepared.

I.e., according to the Rambam, the seller should write a legal document, mentioning the transfer of the promissory note. According to Sefer Me’irat Einayim 66:1, one may write this message on the promissory note itself.

By adding the latter phrase, the seller makes it clear that he is not transferring merely the physical piece of paper, but the debt.

The Shulchan Aruch (Choshen Mishpat 66:4) mentions the opinion of the Nimukei Yosef, who states that first the promissory note must be transferred, and afterwards the written document should be composed.

In his gloss on Bava Batra, the Nimukei Yosef explains that the ownership of the actual paper on which the note was written is transferred with the physical transfer of the promissory note, and the debt is transferred through the written message.

I.e., as in any other business transaction, witnesses are necessary only to prevent a denial of the claim. Thus, if a person produces a promissory note, claiming that he purchased it, and the creditor mentioned in the note claims that he entrusted it to that person for safekeeping or that he lost it and that person found it, the claim of the person in possession of the note is believed. He is not required to produce the legal document stating that the promissory note was sold to him (Sefer Me’irat Einayim 66:28).
See the Siftei Cohen 66:29, who states that many authorities dispute this ruling.

Sefer Me’irat Einayim 66:29 explains that we follow the principle: “A person who wishes to expropriate money from a colleague must prove that it is due him.”

If the debtor does not issue such a claim on his own initiative, the court instructs him to pay the debt [Shulchan Aruch (Choshen Mishpat 66:11)].

Note the Siftei Cohen 66:1, who quotes the opinion of the Ritba, who maintains that the sale of promissory notes is binding according to Scriptural Law. Nevertheless, even the Ritba accepts the principle that a person who sold a promissory note retains the prerogative of nullifying it, as explained in that source. This perspective is also reflected in the gloss of the Ra’avad.

Despite the fact that according to Rabbinic Law the debt was transferred, according to Scriptural Law the debt is still due the original creditor. Therefore, if he waives payment of the debt, the debtor is no longer liable.
In Hilchot Chovel UMazik 7:10, the Rambam writes that if the seller-original creditor does waive the debt, he is responsible and must reimburse the purchaser for “the entire amount [mentioned] in the promissory note, for he caused him to lose [the money that he could have collected with] the note. It is as if he destroyed it by fire.”
With reference to this law, the Maggid Mishneh and the Ramah (Choshen Mishpat 66:23) state that even if the debt is waived, the purchaser is not required to return the promissory note to the debtor.
See also the Shulchan Aruch (Choshen Mishpat 66:23), which advises the purchaser of the note to have the debtor restate his obligation in writing, transferring it to the purchaser. Once this is done, the debt can no longer be waived.

For according to Scriptural Law, the right to the debt is transferred to the heir, and he has the prerogative of waiving payment.

In some respects a husband is considered to be a purchaser of his wife’s property. Hence, one might think that his wife retains the right to waive payment of the promissory note, as in the previous law. Nevertheless, when a woman marries, she gives up her independent financial capacity and cannot make any decisions without her husband’s approval.

I.e., employing the medium of a kinyan agav.

Although Rabbenu Chanan’el and Rabbenu Asher maintain that a promissory note cannot be transferred via kinyan agav, the ruling of the Shulchan Aruch (Choshen Mishpat 66:10) and the Ramah’s final decision support the Rambam’s view.

I.e., even if it was not located in the property that was sold. (See Chapter 3, Halachah 9.)

In his Kessef Mishneh, and similarly in his Shulchan Aruch (loc. cit.), Rav Yosef Karo states that the creditor must verbally state that he is transferring the obligation that the promissory note carries.

As mentioned above, this expression denotes a conclusion reached by the Rambam for which there is no explicit source in the previous Rabbinic literature. The Rabbis did not discuss whether or not one could waive payment of a promissory note that was transferred through kinyan agav. Nevertheless, since the Rambam considers kinyan agav to be a Rabbinic institution, he concludes that the original creditor can waive payment in this instance as well.

As the Rambam mentions in Chapter 30, Halachah 1, the composition of a deed of sale is totally to the purchaser’s advantage, and moreover, the purchaser can still retract. Hence, there is no reason for the purchaser to be present when the bill of sale is composed.

Acquiring it through chazakah, as stated in Chapter 1, Halachot 3 and 8.

There are commentaries (see Tosafot, Bava Batra 77b) that maintain that this law applies only when the field is being given away as a gift, but not if it is being sold. The Maggid Mishneh and the Lechem Mishneh write, however, that the fact that the Rambam included this law in Hilchot Mechirah, “The Laws of Selling,” indicates that it applies to a sale as well. (Significantly, the Shulchan Aruch includes this law in the section dealing with the laws of gifts.)

Until the deed of title is actually transferred to the recipient, the agents have not completed the mission requested of them. Therefore, the giver may retract his commitment. He may desire to do so, so that his gift (or sale) of the field will not become public knowledge and thus cause his financial reputation to be shaken (Prishah, Choshen Mishpat 243).

For once the agent manifests ownership over a field, it becomes the property of the person on whose behalf he is acting.

The rationale for the Rambam’s decision is that the giver appears to have made the gift of the field conditional on the composition of the deed of title. Since he has a right to retract with regard to the deed of title, he may also retract with regard to the field as a whole (Maggid Mishneh).