In Chanpter 22 of Hilchot Mechirah, Maimonides discussed the question of whether or not an individual has the ability to transfer ownership of an “item that does not yet exist” (davar shelo ba la’olam). If someone attempts to sell or gift such an item, is the transaction valid?

Notwithstanding the fact that a lengthy list of Tamudic sages believe that one may indeed carry out such a transfer,1 the consensus in halacha is that this type of transaction is invalid. Any party involved in any such transaction may renege, (even after the item has come into existence.) Furthermore, they would not be subject to the mi shepara” curse.2

However, in this week’s section he clarifies this law:

A person may transfer ownership over a property itself with regard to the produce it yields. This is not considered to be transferring ownership of an entity that has not come into existence. For the article itself exists, and the person is transferring ownership over its produce.3

The classic example given for this is a case of selling “a tree for its fruit,” since the actual tree is being sold, the sale is valid. This clarification will be important later, but first we must understand the underpinnings of the general law that one may not sell or gift an “item that does not (yet) exist.”

Why is such a transaction invalid? According to halacha one may engage in a delayed kinyan (a method of acquisition) for an object that already exists, provided it meets certain conditions.4 So why would transferring ownership of an item that does not yet exist be any different?

Before we can answer this question, we must first ascertain exactly what this term refers to. Two scenarios fall under this term:

Scenario 1: The classic case refers to any item that does not (yet) physically exist. For example, the potential fruit that a tree may bear.5

Scenario 2: This second category is a little broader, encompassing items that do in fact physically exist but are not yet the property of the individual attempting to make the transfer of ownership.6

In both of these cases, any attempted transfer is invalid.

Rabbi Elchanan Wasserman, in his sefer Kovetz Shiurim7 infers from the Talmud two possible rationales as to why “an item yet to exist” cannot be transferred:

Rationale 1: Since the item which we are attempting to transfer does not actually exist, the actual transaction cannot be completed. A transaction can only take effect for an item that exists. This is because a kinyan must be able to “latch onto” something. The fact that the item does not exist creates a problem for the integrity of the transactional process (known as masseh ha’kinyan).

Rationale 2: Here the issue is not the actual kinyan; rather, the issue is with the mindset of the receiver. For a kinyan to be valid, each party must be fully engaged in the transaction, we must be certain that each party has full faith in the transition. Perhaps there is indeed no issue with carrying out a kinyan on an item that does not yet exist, (it could be that the kinyan will take effect automatically when the item comes into existence); the issue here is that the person receiving the item is not 100% convinced that the transaction will be completed. Since the item is not yet in the possession of the one attempting the transfer (or does not yet exist), the buyer (or in the case of a gift, the receiver) is not fully invested in this transaction, thereby missing the full intent (gemirat daat).

So according to the second rationale (that the issue is that the necessary assurance may not be fully present), if we are somehow able to give that assurance to the receiving party, then the transfer should be considered valid.

Indeed, Rabbi Asher ben Yechiel, the Rosh, as quoted by his son, Rabbi Jacob ben Asher, (known as the Baal Haturim or simply Tur) in his commentary on the Torah, Ha’tur Ha’aruch suggests something along these lines. First we must consider the context of this Baal Haturim.

Could Esav Sell His Firstborn Rights?

The infamous episode in which Esav sells his firstborn rights to Yaakov, recorded in Genesis (Chapter 25, verses 29-34), causes some wrinkled brows among the Rabbis. They question, how could Esav sell his firstborn rights, of which many elements did not yet exist (or were not yet in his possession)?8 Do we not know that our forefathers kept the Torah laws even before the actual giving of the Torah?9 Would this not fall under the category of “something that does not yet exist” and would therefore not be a valid sale?

After proposing various solutions, the Baal Haturim quotes the following argument in the name of his father, the Rosh.10 The Rosh seizes on the fact that in the case of the sale of the firstborn rights to Yaakov, Yaakov made Esav take an oath to affirm the sale. By virtue of the fact that this sale is viewed as valid and binding we can deduce that in any scenario where a method of acquisition (kinyan) would generally be considered invalid and the attempted transaction void, if this kinyan is accompanied by an oath—which fortifies the attempted transaction—then the kinyan would be binding. The Rosh seemingly understood that the deficiency in a transaction (of “something that does not exist”) is based on the assurance of the receiver. However, if accompanied by an oath, which adds a level of assurance, the transaction is considered valid.

However, the Rivash11 (Rabbi Yitzchak ben Sheshet, 1326 –1408) disagrees, writing that it has nothing to do with an oath. In no way does an oath validate such a sale. Rather, the reason why Esav could sell his rights is because it was before the giving of the Torah at Mount Sinai, and the exact manner in which a transaction is established was yet to be codified.

We could argue that perhaps the Rivash and the Rosh (as quoted by his son) argue in line with the divergent rationales offered above: According to the Rosh, the issue is the lack of assurance; therefore, if the kinyan is accompanied with an oath it would be binding because an oath lends it sufficient assurance. The Rivash, however, believes that the issue is that that the actual kinyan cannot function on an item that does not exist. If this is the case, then it would not matter if it is accompanied by an oath; an oath would not be able to rectify a deficiency in the actual mechanism of the kinyan.12

However, it would seem that the Rosh believes that the primary issue with the attempted transfer of an item “that does not exist” is not the lack of assurance; rather, it is an insufficiency in the actual transaction. When discussing the issue of transferring an item that does not exist he writes that “it is not an item onto which a kinyan can be applied,” seeming to imply that the issue is not a lack of assurance.13 This would rebut our solution; if the issue is not with the assurance, how would an oath be of assistance?

So it seems we are back to our initial conundrum; which of these rationales are correct? Why is the Talmud ambiguous, suggesting different rationales in different places? And why does the Rosh say that an oath would help, if he seems to imply that the issue is with the process of the kinyan and not with the assurance?

To resolve this we must invoke the two categories noted above, regarding exactly what is the definition of an item that does not exist. We discovered that this term refers to both an item that does not physically exist and an item that is not (yet) in the possession of the individual attempting the transfer. We can explain that the reason the transaction is invalid in each of these two categories is dependent on a specific one of these two rationales.

When we talk about an item that is not yet in existence, the reason such a transaction is invalid is because there is nothing for the kinyan to “fall onto” (chal). There is no item that a kinyan can be made on. However, when an item exists but is simply not in the possession of the individual who is attempting the transfer, since the item exists a kinyan could potentially be valid. Here, however, the issue is the assurance, since the receiver is not convinced that he will ever receive the item, and therefore the transaction is not valid.14

Indeed, if we cycle back to Rabbi Elchanan Wasserman in his sefer Kovetz Shiurim, who introduced us to these divergent rationales. He cites a section of Talmud in support of each one. In Tractate Bava Metzia,15 which he brings to support the idea that the proper assurance is lacking, we discover that the Talmud is indeed discussing an item that is not currently in the individual’s possession, not an item that does not physically exist. As established above, the issue in such a case is indeed with the assurance. Similarly, if we examine the Talmud16 brought as the source for the rationale that the actual kinyan is the issue, i.e., that there is nothing on which the kinyan can “latch” on, we find that the Talmud is indeed referring to a case of an item that does not exist at all.

A Deeper Meaning

Rabbi Menachem Mendel Schneerson, The Lubavitcher Rebbe, offers a unique interpretation of this law. We have established that one cannot sell the potential fruit of a tree. However, as mentioned above, if one sells “a tree for its fruit,” i.e., the tree itself is being sold, then, it is a valid sale.17 Using this principle, the Rebbe explains that there are two distinct ways a person can serve one’s Creator. The first is when a person is specific: “In this regard I will serve G‑d, at this time and with this action.” On each occasion the person must arouse a new will and inspiration to carry out the task. Such a scenario, says the Rebbe, is considered “an item that does not yet exist.” Who is to say that he or she will carry through and actualize the commitment?

A different perspective is that one’s entire being only exists to serve G‑d. If transferring (i.e., giving over) one’s entire being to serve G‑d, then it is considered a “valid transfer”. This is similar to the case of one who sells the entire tree, in which case the sale is valid; here too, a person is able to transfer one’s entire being to G‑d. We are sure that the obligation will be fulfilled, since every waking moment is in the service of G‑d; there is no need to worry that in certain instances one will not follow through. Such a person is living a life that is entirely G‑dly.18