💾 Archived View for scholasticdiversity.us.to › scriptures › jewish › t › Mishneh%20Torah%2C%20Sales… captured on 2024-05-10 at 12:12:38. Gemini links have been rewritten to link to archived content
-=-=-=-=-=-=-
11 [1] When a person transfers ownership of an article - whether landed property or movable property - and establishes conditions that can be fulfilled the conditions are binding - whether established by the seller or the purchaser. If the conditions are fulfilled, then the ownership of the object is transferred. If the conditions are not fulfilled, the ownership of the object is not transferred.
We have already described the laws governing conditional agreements in *Hilchot Ishut.* [2] When does the above apply? When a person stated a condition and then carried out a *kinyan* transferring ownership of the article through one of the accepted procedures. For then, he is obligated to fulfill the condition.
If, however, the person did not perform a *kinyan,* but merely entered into a conditional agreement stating that if this condition is fulfilled he will transfer ownership, and if it is not fulfilled he will not transfer ownership, the transfer of ownership is not effected even if the condition is fulfilled.
This is considered an *asmachta -* i.e., he made his transfer of ownership dependent on the performance of certain deeds. An *asmachta* is never binding, for the person transferring ownership did not make a firm decision in his heart to transfer ownership. [3] What is implied? A person sold a house to a colleague or gave it to him as a present, on condition that the recipient travel to Jerusalem with the seller on a given day. If the recipient manifests ownership over the house, he acquires it when he travels to Jerusalem with the seller on the date stated. If that day passes and he does not make the journey, he does not acquire it.
If, however, the owner made a condition and told the potential purchaser: "If you go with me to Jerusalem on this and this day...," or "If you bring me this article, I will give you this house," or "...I will sell it to you at such and such a price," although the person travels with him on that day or brings him the article, he does not acquire the house. This applies even if the potential purchaser manifests his ownership over the house after he fulfills the condition, for this is an *asmachta.* The same laws apply in all analogous situations. [4] For this reason, the following rules apply if a purchaser gives security to a colleague and tells him: "If I retract, I waive ownership of the security in your favor," and the seller says: "If I retract, I will double your security." If the purchaser retracts, the seller acquires the security, because it is in his possession. But if the seller retracts, we do not require him to double the security. For his promise was an *asmachta* and is not binding. [5] A similar principle applies if a debtor paid a portion of a debt and the creditor entrusted the promissory note to a third party after the debtor made the following statement: "If I do not pay the remainder until such and such a date, return the promissory note." If the date arrived and the debtor did not pay, the third party should not give the promissory note to the creditor. For this agreement is an *asmachta.* [6] Similarly, all the conditions that people establish between themselves, even when confirmed by witnesses and a legal document - e.g., "If such and such will take place..." or "If you do such and such, I will give you a *maneh"* or "...I will transfer ownership of this house to you, but if this does not take place..." or "if you do not do such and such, I will not transfer ownership," or "...I will not give you," are considered *asmachta'ot.* Even though the potential recipient performs the desired action, or the event occurs, he does not acquire the promised article. For his intent is undefined, being dependent on whether or not the stipulation will be met. [7] Whenever a person says: "Acquire an entity upon fulfillment of a condition, retroactive to the present time," it is not considered an *asmachta* at all, and the transaction is binding. For if the person had not made a definite commitment to transfer ownership, he would not have transferred ownership retroactively to the time of the agreement.
What is implied? If a person says: "If I return between now and such and such a date, you acquire this house retroactively to the present time," and his commitment is affirmed by a *kinyan* the transaction is binding if he returns within the set time. The same applies with regard to all similar situations. [8] When a person sells a courtyard or a field and specifies at the time of the sale that he is selling the property in order to travel to a particular place, or because there has been a drought and he desires to buy wheat with the money he receives for his courtyard, it is considered as if he sold the property conditionally.
Therefore, if it rained after he made the sale, or wheat was imported and sold at a lower price, or he was prevented from travelling to that land, or factors did not facilitate his journey or his purchase of wheat, the seller may return the money he received and have the land returned to him. For he stated that he was selling the property only for the sake of performing a specific act - and that act was not performed. Similar principles apply in all analogous situations. [9] If, however, a person sells landed property without making any explicit statement, the sale is final even though he had the intent in his heart that he was selling the property for a particular reason, and even if it is apparent that he is selling the property for that reason. The rationale is that he did not make an explicit statement, and thoughts in a person's heart are of no consequence in business transactions. [10] The following rules apply if one transferred ownership of an entity to a colleague and stipulated that he acquire it on the condition that he give or sell that entity to another person. If the person gives or sells the entity to that person, the transaction is binding. If he does not fulfill the stipulation and sells it to another person, or does not give or sell it to the person intended within the time frame established, the original transaction is not binding.
Similarly, if the seller or the purchaser of an article establishes a condition that the article be returned at a specific time or returned at that time in exchange for money, the transaction is binding, and the article must be returned as stipulated. [11] Different rules apply in the following situation. A person sold landed property to a colleague. The seller made a stipulation, saying: "When I acquire money, return this land to me." The produce of the land belongs to the seller.
If the seller made the sale without stipulating a condition, and the purchaser said on his own volition: "When you acquire funds, bring them to me, and I will return this property," the stipulation is binding. The purchaser can derive benefit from the property; doing so is not considered "a shade of interest," because the purchaser voluntarily obligated himself by this condition. [12] An incident occurred concerning a woman who sent an agent, Reuven, to purchase a courtyard for her from one of her relatives, Shimon. Shimon, the seller, said to Reuven, the agent: "If I acquire funds, so and so, my relative, should return this property to me."
Reuven answered him: "You and so and so are relatives. You are so close, you are like brother and sister" - i.e., it is as if he were saying, "It is very likely that she will return it to you, and that she will not show concern about such a matter."
Afterwards, the matter was brought to the Sages, and they ruled that the agent did not purchase anything. For the relative selling the field did not rely on the agent's words, since they were not a clear reply. Therefore, the seller did not make a final decision to transfer ownership. Similar principles apply in other analogous situations. [13] When a *kinyan* confirming an *asmachta* is made in a prominent court, it is considered as binding. This applies, provided the person involved entrusts the legal documents involved to the court, and provided he is not acting under duress. [14] What is implied? A person entrusted his promissory note or his receipt to the court and engages in a *kinyan,* stating that if he does not come by such and such a date, the promissory note should be given to the other litigant. If the date arrives without the person's coming, the note should be given. If he was prevented from coming by a river or by illness, the promissory note should not be given to the other litigant. Similar principles apply in all analogous situations, provided that this is done in the presence of a prominent court. [15] When a person undertakes a financial obligation to another person without making any stipulation, he becomes liable although he did not owe that person anything previously. He is giving him a present; this is not an *asmachta.*
What is implied? A person tells witnesses: "Serve as witnesses that I owe so and so a *maneh,"* he composes a legal document that states that he owes the other person a *maneh* even though it is not observed by witnesses, or he told the other person in the presence of witnesses: "I owe you a *maneh* as recorded in a legal document." In the latter circumstance, even though he did not tell the witnesses to serve as witnesses, since he said "as recorded in a legal document," it is as if he told them: "Serve as witnesses that I am obligated."
Even though both parties admit - and the witnesses know - that the giver did not owe the recipient anything, he accepted an obligation on himself and becomes liable, as a guarantor does. The majority of the *geonim* ruled in this manner. [16] The following rules apply when a person accepts an obligation on himself that is unlimited in nature - e.g., he says: "I obligate myself to feed you..." or "...to clothe you for five years." Even though he affirms his commitment to the recipient with a *kinyan,* he is not liable. For this resembles a present, and yet there is no specific and known entity that is being given as a present. My masters ruled in this manner. [17] If so, why is a person who makes a commitment to his wife to provide food for her daughter from a previous marriage obligated to provide for her? Because he made this commitment at the time of their marriage. And the matter resembles entities that are acquired although only a verbal commitment is made. [18] When the sages of Spain desired to make a *kinyan* with regard to an *asmachta,* they would adhere to the following guidelines: They would establish a *kinyan* with one party that he is obligated to the other party one hundred *zuz*. After he has undertaken such an obligation, a *kinyan* is made with the person to whom he indebted himself, that as long as this and this condition prevails or if he does such and such, the obligation is waived, effective retroactively to the time of the agreement, but that if this condition does not prevail or if he does not do such and such, he will sue him for the payment of the money for which he obligated himself.
This is the procedure that is followed in all stipulations that are made between a man and his wife with regard to engagements and other similar matters.
Version: Mishneh Torah, trans. by Eliyahu Touger. Jerusalem, Moznaim Pub. c1986-c2007
Source: https://www.nli.org.il/he/books/NNL_ALEPH001020101/NLI
License: CC-BY-NC