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7 [1] Whenever a person pays money, but does not perform *meshichah* on the produce, although the purchaser does not acquire the movable property, as we have explained, the person who retracts - whether the purchaser or the seller - is considered not to have conducted himself in a Jewish manner. He is liable to receive the adjuration referred to as *mi shepara.* Even if the purchaser only made a deposit, if either of the parties involved retracts, that party is eligible to receive the adjuration referred to as *mi shepara.* [2] What does receiving the adjuration referred to as *mi shepara* involve? He is cursed in court and told: "May He who exacted retribution from the generation of the flood, the generation who were dispersed, the inhabitants of Sodom and Amorah, and the Egyptians who drowned in the sea, exact retribution from a person who does not keep his word."
After this curse is administered, the seller should return the money. [3] The following laws apply when a purchaser pays - either completely or partially - for movable property that he desires to purchase and then retracts and the seller tells him, "Come and collect your money." The money is considered to be an entrusted object. If it is stolen or lost, the seller is not responsible for it.
If, however, the seller retracts, the money is considered to be within his domain, and he is responsible for it even though he tells the purchaser, "Come and collect your money." This applies until he receives the adjuration *mi shepara* and tells the purchaser afterwards: "Come and collect your money." [4] When a person is owed a debt by a colleague and tells him: "Sell me this jug of wine for the debt that you owe me," and the seller agrees, it is considered as if the purchaser paid the money at that time. If either party retracts, he is liable to receive the adjuration *mi shepara.*
Moreover, if he sold him landed property in exchange for the debt, neither party is allowed to retract. This applies even if the money given as a loan is no longer in the seller's possession at the time of the sale. [5] When a person purchases landed property, servants or other movable property from a colleague, a price is agreed upon, and the purchaser leaves collateral in place of the money, the transaction is not completed. Either of the two can retract; he is not even liable to receive the adjuration *mi shepara*. [6] The following rules apply when a verbal agreement alone was concluded with regard to the sale, a price was established, and the purchaser made a mark on the article so that he will have a sign that it is his. Even though the purchaser did not pay any money at all, if either of the parties retracts after the purchaser made the mark, he is liable to receive the adjuration *mi shepara.*
Moreover, if it is the accepted local business custom that making a mark constitutes a binding act of contract, by making that mark, the purchaser completes the transaction. Neither can retract, and the purchaser is liable to pay the price agreed to. [7] It is a clear fact that this law applies only when the mark is made in the presence of the seller, or if the seller says: "Mark your purchase." For this indicates that he has agreed to transfer ownership, as explained with regard to *chazakah* and *meshichah.* [8] When a person agrees to a transaction with a verbal commitment alone, it is appropriate for him to keep his word even though he did not take any money at all, did not make a mark on the article he desired to purchase, nor leave security. If either the seller or the purchaser retracts, although they are not liable to receive the adjuration *mi shepara,* they are considered to be faithless, and the spirit of the Sages does not derive satisfaction from them. [9] Similarly, if a person promised to give a colleague a gift and failed to do so, he is considered to be faithless.
When does the above apply? With regard to a small gift, because the recipient will depend on the promise that he was given. With regard to a large gift, by contrast, the giver is not considered to be faithless if he retracts, because the recipient does not believe that he will give him these articles until he transfers ownership through a formal *kinyan.* [10] The following rule applies when a person gave money to a colleague to purchase landed property or movable property, and the agent left his colleague's money in his domain and went and purchased the object for himself with his own money. The purchase he performed is concluded; he is, however, considered to be a man of deceit. [11] If the agent knows that the seller has affection for him and honors him and would sell the article to him, but not to the person who charged him with purchasing it, the agent is permitted to buy it for himself. He must, however, return and notify the one who sent him. If he is afraid that another person will come and purchase the article before him, he may purchase the article for himself and then notify the one who sent him. [12] Several Rabbinic authorities have ruled that if the agent purchased the article for himself using the money entrusted to him by his colleague after considering it to be a loan, he is considered to have purchased the article for himself. We accept his claim: "I considered the money that I was given to be a loan."
I differ and maintain that this ruling is not true. Instead, the purchase belongs to the principal, as will be explained with regard to the laws of an investment partnership. [13] The following rules apply when three people give money to one agent to purchase an article for them: If the monies were mixed together, and the agent used only a portion of the money to purchase the article, the article is considered the property of all the purchasers, and they divide ownership of it according to their share of the money. This applies even if the intent of the agent was that the article be purchased by only one of them. [14] If the money of one of the partners was bound up and sealed, and that money was used to complete the purchase, the partner whose funds were used alone acquires ownership. This applies even if the agent intended that the article be acquired by all the partnership as a joint enterprise.
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