Siman 183

One who gives money to his agent to buy him a specific merchandise and he did not buy it, he has nothing against him but a grievance. And if he bought it for himself with his own money, he is called a deceiver; nevertheless, the purchase is his. And some say that even if he did not designate a specific merchandise for him, but rather merchandise in general, he is also called a deceiver when he buys for himself [Sma], and there are those who disagree on this [Taz]. And all this is when he was an agent for free, or if he accepted the agency for a time, for he is like a worker and can retract. But in an agency for pay or as a contractor, where he sent him to buy merchandise at a fair or on a market day, and afterwards the merchandise increased in price and he transgressed and did not buy, he is liable to complete for him the prevention of profit according to what other merchants profited [Netivot HaMishpat], and specifically when he gave him money [it appears to me]. And if it is known that he took merchandise with the money of the sender, in any case it belongs to the sender, and it does not avail him that he canceled his agency and bought it for himself. And the Rambam, of blessed memory, wrote in chapter 7 of Mechirah that an agent who bought for himself with the money of the sender, even if he converted the money into a loan against himself before witnesses, the purchase belongs to the sender. And even if he said before them that he retracts from his agency and misappropriates the money of the sender, such that he is like a robber, it does not avail him, and the purchase belongs to the sender, for it is not within his power to take the money of his fellow and buy for himself. And some say that his agency is canceled because of his misappropriation, for he is like a robber, and all robbers only pay according to the time of the robbery. But the primary ruling is like the Rambam [Taz], for even though misappropriation is robbery, nevertheless, since in the essence of the agency he did not deviate, this is nothing; and even though he says he wants to rob, we do not allow him [Ma'aseh Chiya], not like the one who disagrees on this. But when he deviated from his agency, such as if he commanded him to buy wheat and he bought barley, if he said before witnesses that he is buying for himself, the profit is for himself [Sma and Shach]. And when he did not say "I am buying for myself," even though he deviated, if the sender wants, he may seize it for himself, for any error in agency, if he lost, he lost for himself, and if he profited, it belongs to the sender.

One who gives money to his fellow to purchase for him land or movable property, and he left his fellow's money with him and went and purchased for himself with his own money, what he has done is done, but he is a deceiver. And if he knew that this seller would not sell to his sender, but only to him because he is his friend, it is permitted ab initio to purchase for himself. And so too, if he knew that this field belongs to a violent or powerful person and others would be afraid to purchase from him, but he is not afraid, it is also permitted for him to purchase ab initio when the sender did not tell him to purchase this specific field, but rather land in general. However, he must inform the sender if he knew this beforehand; and if he became aware afterward, he must inform him immediately if it is within his power to inform him before the conclusion of his purchase. And if he is afraid that another will precede him, he purchases and informs him afterward in order to remove himself from suspicion and so that he should not rely on him; but the notification before the purchase is lest he might want to purchase even from such a violent or powerful person. And if he purchased it without specification with his own money, he can say afterward, "I purchased it for myself" in any case, and he is believed to say so [the Gra], for presumably since he purchased with his money, he intended for himself. And this is specifically when he sent him to purchase land in general or movable property in general; but if he sent him to purchase a specific field or specific movable property, since it is a practice of deceit, certainly from the beginning he purchased it for the sender, and he is not believed to say that he purchased for himself even if he has a migo [Netivot HaMishpat], unless he said before witnesses, "I am purchasing for myself." And all this is when his acquisition was with money; but if he purchased it through one of the other methods of acquisition without money, the sender has acquired it, and even if the agent sold it, it is nothing, unless the seller did not want to sell it to the sender but only to the agent, or that the agent uprooted his agency before witnesses prior to the purchase [it appears to me].

Reuven who said to Shimon, "Purchase for me such-and-such an object," and he purchased it without specification, he has purchased it for Reuven. Even though he purchased it with his own money, Reuven acquires the object and gives the money to Shimon, for presumably a person stands by his faithfulness, and Reuven acquires the object from the moment Shimon performed meshikhah on the object, and neither of them can retract. And even if Shimon says after he performed meshikhah, "I purchased it for myself, and such was my intention at the hour I performed meshikhah," he is not believed, for we say he certainly stood by his faithfulness and now wishes to retract. However, if he retracted before the meshikhah and says that he is purchasing for himself, even if his retraction was after giving the money to the seller, nevertheless, since the money is his and money does not effect acquisition except regarding "He who punished," even if we say that at the hour of giving the money he did not wish to retract, nevertheless he has not yet acquired it from his sender, and at the time of meshikhah he acquired it for himself. And even "He who punished" does not apply, for they did not institute "He who punished" except between a seller and a buyer, but not between an agent and a sender [Tur]. And if he gave the money to the seller in the name of his sender, he cannot retract even before meshikhah, and even if the money is his [Sma]. And likewise, if Reuven gave money to Shimon and Shimon gave the money to the seller, even without specification, and before meshikhah Shimon says, "I am purchasing for myself," he does not acquire it until he designates his own money to return to the sender and also informs the seller that he is performing meshikhah for himself [ibid.]. And some say that certainly when the money belongs to the sender and he gave it to the seller in the name of the sender, then he cannot retract even before meshikhah unless he designates other money and informs the sender. But when the money belongs to the agent, even if he gave it to the seller in the name of the sender, or if the money belongs to the sender and he gave it to the seller without specification, he can retract before meshikhah and perform meshikhah for himself [Taz] when he designates other money to give to the sender; and this fact that he gave it in the name of the sender is not an acquisition, and with the money of the sender, since he designates other money before the meshikhah, why should he not be able to retract? And only when the money belongs to the sender and he also gave it to the seller in his name is it certain that the seller, also at the hour of meshikhah, transferred ownership to the sender [it appears to me]. And the first opinion holds that since according to the Torah money effects acquisition, therefore when he gave the sender's money to the seller, even without specification, a Torah acquisition was effected between the sender and the seller; and even though according to the Rabbis they can retract, nevertheless the one who retracts is liable to "He who punished," and therefore the agent, who is like another man, does not have the power to nullify the Torah acquisition that is between the sender and the seller. And likewise, if the money was his and he gave it in the name of the sender, it is as if he conferred his money to the sender through the seller who should acquire it on his behalf, and it becomes a Torah acquisition between the sender and the seller [Netivot HaMishpat]. And in section 4 it will be explained that the primary view is like this opinion. And if the agent wishes to retract, he has no remedy after giving the money to the seller until he informs the seller that he is retracting from his agency and his desire is to purchase it for himself; and if the money belongs to the sender, he designates other money in its place, and automatically he and the seller nullify all that preceded, and since there was no complete acquisition, they can together nullify it, and afterwards when he performs meshikhah, the seller transfers ownership to him and not to the sender [ibid.]. And in such a case where he informs the seller and the seller consents to transfer ownership to him and he retracted from his agency, even though the money belongs to the sender and he gave it in the name of the sender, it belongs to the agent, and the sender has no claim against the seller as to "why did you consent to retract," for the seller can say to him: "Since in your name there was not yet an acquisition of meshikhah and you could have retracted by accepting 'He who punished,' and the agent did not want to perform meshikhah for you, what was I to do since I am compelled to sell?" [it appears to me]. And all these laws are when the sender said to the agent, "Purchase for me," but if he said, "Bring to me and I will purchase," and he went and purchased for himself, he has purchased it in any case, since he did not command him to purchase on his behalf but rather that he should bring the object to him and afterwards he would purchase it himself.

In Bava Kamma [102b] there is an opinion that when the agent deviated from the intent of his sender, the sender did not acquire unless the seller knew that the acquisition was for the sender and intended to transfer ownership to the sender; and if he did not know and did not intend to transfer ownership to him, he did not acquire. However, our teachers, the Rishonim, wrote that the conclusion is not so for the law, and the intent of the seller is of no consequence. Some of the great authorities raised a difficulty from what was explained in section 3, which proves that the intent of the seller is a hindrance. It appears to me that they are not related to one another, for there it only deals with a case where he deviated in his agency from wheat to barley, yet the intent of the agent was nevertheless to acquire for his sender, as the Rosh wrote there; in such a case, the intent of the seller is not a hindrance. But when the agent uprooted his agency and desires to acquire for himself, in that case the law is certainly as written in section 3, for the intent of the transferor is a great principle in acquisitions. However, in the Gemara they said that in a deviation from the intent of his sender, this is not a hindrance for the sender when there is a profit in the merchandise, because the seller transfers ownership to the owner of the money, and the hand of the agent is like the hand of his sender. And that which he deviated is not a hindrance, for behold, even if they added to the agent, everything belongs to the sender as will be explained, all the more so in a deviation where the profit belongs to the sender. [And what the Taz wrote, that the Ramah holds like the Bava Metzia in the Shita Mekubetzet, it is explained in his name to the contrary.] All this is when the sender made him an agent. But if Reuven bought an object with his own money in the name of Shimon, even if he intends to transfer ownership of it to Shimon, Shimon has not acquired, even if Reuven said before witnesses, "I am buying for my fellow Shimon," unless he informed the seller that he should acquire this object for Shimon; for since he is not his agent, it certainly depends on the intent of the seller as to whom he is transferring ownership. [And this is the intent of Rabbeinu Yerucham which the Shach cited in subsection 2, and the Beit Yosef also admits to this, and so wrote the Ketzot HaChoshen, and his difficulty from Bava Metzia 15a is answered. And the opinion of the Ramah and the Rosh is one, and study it well.] And if Reuven bought land in the name of Shimon for whatever reason he had, and Shimon did not know of this and the seller also did not know of this, Reuven has nevertheless acquired, for the intent of the seller is for whoever the money belongs to [Rashba there]. For the seller has no concern since Reuven did not deviate from the intent of Shimon in that his intent was for himself, since he is not his agent at all; and as for his buying in the name of Shimon, what damage is there to the seller in this? Therefore, it is in his mind to transfer ownership to the owner of the money even though another name was written in the deed. According to this, the primary law is like the first opinion in section 3, that when the money belongs to the sender, even though the agent gave it to the seller without specification, he cannot retract without the knowledge of the seller, because the seller transfers ownership to the owner of the money. And similarly, even if the money belonged to the agent and he gave it to the seller in the name of the sender, he is unable to retract without the knowledge of the seller, for behold, the seller explicitly transferred ownership to the sender. And another reason was explained there.

Reuven, who knew of a place to buy merchandise cheaply and told Shimon to buy it for them together, and Shimon remained silent and bought it, and said before the purchase in the presence of witnesses that he was buying it for himself—if he bought it with his own money, Reuven has no portion in this. And even if Shimon initially explicitly agreed to buy it for the partnership and afterwards bought it for himself, it belongs to him, and he is merely a deceiver. But if he bought it also with Reuven's money, he shares it with him. And even when he bought it with his own money, if he did not say before the purchase that he was buying it for himself, it belongs to both of them, and he is not believed to say afterwards "I bought it for myself," for presumably, since by doing so he would be a deceiver, he certainly stood by his faithfulness and now wishes to retract [Sma and the Gra]. And there is one who says that if Reuven did not have money with which he was able to buy that merchandise, and he told Shimon and he remained silent, he is believed even afterwards to say that he bought it for himself, and this is not a deception at all; since Reuven did not have the means to buy, he lost him nothing [Raviah, cited in the Beit Yosef]. But if he explicitly promised him to buy for both of them, or if Reuven was able to obtain money or a partner, he is not believed afterwards to say "I bought it for myself" unless he said so before the purchase in the presence of witnesses. However, even in a case where the acquisition is for himself, he nonetheless must pay Reuven a brokerage fee according to the custom of the place if Shimon did not know of the merchandise. And all this is regarding the retraction of the agent, but if the agent does not retract, the sender cannot retract even when the agent bought with his own money. And in the end of siman 269 more will be explained regarding this with the help of Heaven.

And so too regarding shopkeepers or merchants who know of a certain commodity in a specific place, and they said to one of them, "Go and buy the commodity for all of us," and he remained silent and went and bought it, and they also had the ability to buy it, and after he bought it he says that he bought it for himself, he is not believed. And all the more so when there is a custom among the merchants and the shopkeepers that when they buy in such a manner, they all have a portion in it, for presumably when he acted, he acted according to the custom.

If one gave money to his agent to buy him wheat, whether for merchandise or for food, and he went and bought him barley, or vice versa: if there is a loss, it is for the agent, and if there is a profit, it is for the sender, according to the rule that has been explained that in any deviation from the law, such is the case. And the agent cannot say, "If you do not consent to both the profit and the loss, I will give you your money and take the merchandise for myself," for the sages imposed a penalty that anyone who deviates has the lower hand, and the sender can say, "The loss is yours and the profit is mine." However, the agent does not bear responsibility in such a case except regarding price fluctuations, but an unavoidable accident that did not result from the deviation, or theft and loss when he does not receive payment for the agency, he is exempt, since he wanted to take the merchandise for himself. But if he does not want to take it for himself, or if the accident occurred before it became known to the sender, the agent is liable for everything, for since he deviated, his legal status regarding the money is like a borrower and he is liable for unavoidable accidents. And if there was a profit, it all belongs to the sender in any case, not like those who disagree and say that the profit is divided. And the same law applies if he gave him money for half-profit and he deviated: the loss is upon the receiver and the profit is divided according to all opinions, since he received them for half-profit. And so too, if he sent him with merchandise to bring it to a certain place and he brought it to another place: if there was a loss, it is for himself, and if there was a profit, it belongs to both of them if he gave it to him for half-profit, as I wrote in siman 176 regarding partners; and if he was an agent, the profit belongs to the sender, as has been explained.

If the agent did not deviate from his agency, and the seller added for the agent more than the purchase price he sold to him in number, weight, or measure—if this item that he bought has a fixed and known price such that the price is established, the addition belongs to both of them, and the agent divides it with the owner of the money. The reason is that by law, all of the addition should have belonged to the agent; since it is not known to us for whom the seller added, it is more likely to say that he gave a gift to the agent, for why would he add to the purchase in a matter that has a fixed price? However, nevertheless, since the cause was through the business of the sender, the sages of blessed memory commanded that they shall divide. But if it was a matter that does not have a fixed price, such as a tallit, a cow, or other types of objects whose fixed price is not known, everything belongs to the owner of the money, for we say that presumably he sold them for this price. All of this applies in an unspecified case, but when the seller specified for whom he is adding, there is no distinction between whether it has a fixed price or does not have a fixed price, and they shall do as he said. If there is a denial between the agent and the sender as to for whom he added, and the agent is in possession, he shall swear that it is as he says. After he has handed it over to the agent, he is not believed to extract it from him by means of an oath, and even to obligate the sender in an oath is not within his power, for presumably since he handed him the merchandise, he needed to hand it over to him [it appears to me]. And some say that in a matter that has a fixed price, even if the seller said that he is giving only to the agent, he must divide with the sender for the reason that was explained, that the sender was the cause; and so the great later authorities agreed, and it depends on the assessment of the judge [Sma]. Nevertheless, if the agent says that he added for him because of some favor that he did for him in some matter and not because of the acquisition, everything belongs to the agent, and he shall clarify the favor he did for him or swear regarding this [Ktzot HaChoshen]. And it appears to me that just as the law is regarding an addition by the seller, so too is the law regarding an addition by the buyer to the money, if it is known that he added intentionally and not because of an error; and also regarding the seller, it must be made known that it was not because of an error.

An agent who stole or robbed, or in a case of an error that is not returned, everything belongs to the agent; for regarding a prohibited act that the agent performed, why should the sender have a portion in this? And similarly regarding an error, for was it not in his power to return the error? And specifically regarding an error in calculation, such as where one needed to give the agent one hundred zuz and gave ten more, for the surplus is like a matter unto itself and is like theft. But regarding an error in a transaction, such as where one needed to give twenty liters and gave thirty, they shall divide it; for even though he gave these extra ones in error, nevertheless, since in any event all that he gave extra in error was by means of the sender's money, it is no worse than one who added to a matter that has a fixed amount, where they shall divide it [Tur]. And even regarding an error in calculation, specifically when the agent knew of the error before he delivered it into the hand of the sender; but if the error became known to him after he delivered it to the sender, everything belongs to the sender, for the agent never acquired it, as there is no acquisition without knowledge. And specifically regarding an error is the law so, but regarding an addition, the agent has his portion even when it was not known to him until he delivered it to the sender, for an addition is like a gift and he acquires it even without knowledge, since there is the knowledge of another transferring it to him [Netivot HaMishpat]. And one who was doing business with an extortionist and his fellow came and assisted him, and the assistant deceived him in measure or in weight or in count, they divide it between them, whether he worked with him for a wage or for free; and this is when they took more, but when he gave him less than what he was supposed to give, everything belongs to the owner of the money [Netivot HaMishpat]. And one who sent merchandise to his fellow via an agent, and the agent through his wisdom had the customs tax waived for him, he must give the agent a benefit-wage for the benefit he provided him [Shach]. And a community that appointed Reuven as an agent for the collection of tax and to pay the minister, and the minister benefited him for this from the money of the community, everything belongs to Reuven [Sma].

Reuven sent Shimon to take a garment for him on credit, and when the time for payment arrived, he gave him the money to pay the seller. It was found that the seller forgot them, and he is a violent oppressor such that one is not required to return to him when he forgets; he must return them to Reuven. He cannot say, "I wish to withhold them lest the violent oppressor remember after some time and claim them from me," for since previously Shimon trusted Reuven and became a guarantor for him without a pledge, he does not have the power even now to withhold them based on a doubt [Tur], unless Reuven declined from his financial standing and is not as secure now as he was before [it appears to me]. And the money, when he does not remember, belongs to Reuven, for behold they are his and he gave them to Shimon, and since Shimon does not need to give to the seller, they return to Reuven. Shimon does not have the power to say, "I wish to sanctify the Name and return them to the violent oppressor," for let him sanctify the Name with his own and not with the property of others. And the same law applies if Reuven owed money to a violent oppressor and sent it via Shimon to pay him, and he forgot the debt, the money returns to Reuven. So too, one who gave money to his fellow to settle with his creditors, and he settled for less, the remainder belongs to the sender; only if his fellow had exertion in this, one appraises for him the value of his exertion [it appears to me]. And so too, if he gave him two hundred zuz to pay a violent oppressor and the agent misled him for one hundred, he shall return the hundred to the sender, for it is as if the lender forgave half the debt; and since this money belongs to the sender, therefore what remains of it is in his possession, and it is not similar to other errors which belong to the agent. And the same law applies to Reuven who gave pledges to Shimon so that he may borrow on them from a non-Jew with interest according to the interest that he would be able to pay the non-Jew, and he said to Reuven that he pays such and such, and afterwards it became known that he pays less, he must return the remainder to Reuven [Shach]. Even though at first he agreed to more and afterwards the non-Jew reduced the interest, nevertheless it belongs to Reuven, for they are his [it appears to me].