Siman 190

Land is acquired through one of four methods: with money, with a deed, with chazakah, and with kinyan sudar. All of these acquisitions we learned from the Torah. Money we learned from that which is written in Jeremiah [32]: "Fields shall be bought with money." A deed we learned from that which is written there: "And I took the deed of purchase," which proves that there is an acquisition even through the document alone, which is the deed of sale. Chazakah we learned from that which is written there [40]: "And dwell in your cities that you have seized," and "you have seized" refers back to "dwell," meaning: with what did you seize them? Through dwelling, which is chazakah, for they took possession of it. And in the Torah it is written: "And you shall possess it and dwell in it," meaning: with what did you possess it? Through dwelling. And kinyan sudar we learned from the verse in Ruth: "a man drew off his shoe," for Boaz acquired the field through kinyan sudar. And just as a purchase of land is acquired through one of these four methods, so too the rental of land is acquired through them for all the days of the rental, for rental for a day is a sale for the duration of the rental regarding the matter of acquisition. And likewise, the borrowing of land and a mortgage are acquired through them, as I wrote in siman 195.

How is the kinyan kesef? It is not specifically that he must give him the entire sale price; rather, even if he sold him a house or a field for a thousand zuz and gave him a perutah or the value of a perutah as payment for the kinyan, and the remainder he converted into a loan, he has acquired it and neither of them can retract. If he did not convert it into a loan, there is a distinction between whether he "goes in and out for the money" or not, as will be explained. However, less than a perutah is not considered money and this is not a kinyan kesef. Furthermore, even if he sold him land worth a great deal for less than the value of a perutah and gave it to him, even though this is the entire price of the kinyan, nevertheless this is not a kinyan kesef and it is like a gift and requires acquisition through another kinyan. And even though regarding kinyan sudar it is an acquisition even with a vessel that does not have the value of a perutah, as written in siman 195, that is for kinyan chalupin, for the Torah was only particular that it be a vessel, as it is written, "a man drew off his shoe," and not regarding its value. But regarding kinyan kesef, which we learned from "fields shall be bought with money," the Torah was particular regarding the importance of the money, and less than a perutah is nothing. Also, a vessel worth less than the value of a perutah is nothing, for the value of money is not superior to money in any place except for chalupin. And know that a perutah is an important amount in every place and at every time, for all the measurements of the sages were received man from the mouth of man until our teacher Moshe, who received it from the mouth of the Holy One, Blessed be He, from Sinai. And behold, even now we see in most settlements that for a perutah one can buy a kezayit of bread or an onion or a needle and the like, not like the one who wavers regarding this.

That which we have said, that with a kinyan of money one does not need to give the entire price of the acquisition, this is the opinion of most of the poskim, early and late authorities, and so our teachers, the authors of the Shulchan Aruch, stated without qualification. And so it is evident from the Shas, Kiddushin [13a], and this is like a kinyan of chazaka, for even though he performed chazaka on a portion of the land, he acquires the entire land. Furthermore, we maintain in other places that where "money" is written, it means even a portion of the money [Ketubot 97b], and here too, where it is written "fields shall be bought with money," a portion is like the whole, and so is the primary law [and one need not be concerned for what was written in the Shita Mekubetzet, Bava Batra 77b, in the name of a responsum of the Rif, and the halacha is like Rabbi Yochanan in HaZahav 48b; and there is no difficulty from what the Rambam wrote in the first chapter of Shemittah that the excess over a mashkon is cancelled by the sabbatical year, and the Shas compares them to one another, for we compare them in the opposite manner; and see Urim VeTumim siman 67, subsection 13, and from the responsum there is no proof, and delve into this].

That which we have said, that a partial payment of money acquires, this is when he gave it to him as a payment. However, if he gave it to him as an earnest payment in the manner of a penalty, such as if he said to him: "Here is a portion of the money, and if I retract, my money shall be forfeited," he only acquires corresponding to the portion he gave, for this is only as a guarantee that he will not retract, and it is sufficient that he acquires corresponding to his guarantee. Therefore, one must be careful when giving an "aufgab," which is called "zadatok," that he gives them as a payment, such that he says to him: "Here is a portion of the money, such and such, and the remainder I will give at such and such time," and he should not say, "If I do not give it to you at such and such time, these funds that I gave shall be forfeited." And if he did so, both of them may retract regarding the remainder if there was no other kinyan, and he has only acquired corresponding to his money, and from the worst of that field, according to the law of one who buys a portion from his fellow in his field, for he gives him from the ziburit, as written in siman 218. And if the buyer said, "I am hereby giving you this earnest payment with which I shall acquire the entire land," he acquires all of it. But if he did not specify "the entire land," but rather "that I shall acquire" without specification, he has only acquired corresponding to his money. And there are those who say that even if the buyer specified that he shall acquire the entire land with it, it is nothing unless the seller specified so, for he reasons and accepts [Sma]. And our teacher, the Rema, wrote without specification according to the first opinion.

Our sages, of blessed memory, said [Bava Metzia 77b] that as long as he has not paid him all the money and did not establish it upon him as a loan, if the seller goes out and comes in to the buyer to demand his money, the kinyan is not finalized. Even if he acquired it through all the kinyanim—with a shetar, chazakah, and kinyan sudar—nevertheless, since he goes out and comes in after the money, the matter is evident that the essence of his sale was due to his pressure for the money. Therefore, as long as he has not paid him all the money, he has not acquired it, even if only a small amount remains, for we are witnesses that as long as he has not received all the money, the seller does not resolve in his heart to transfer ownership to him. And such is the law regarding movables: even if he pulled them into his domain, he does not acquire in such a case. And according to the opinion of the Rambam in chapter 8 of Mechirah, the purchase is not valid even corresponding to the money he gave, for behold, he needed all the money, and with this intention he did not sell. Nevertheless, our sages, of blessed memory, diminished the power of the one who retracts, such that the opposing party has the upper hand. For example, if the buyer retracted, the seller has the upper hand: if he wishes, he says to him, "Here is your money that you gave me," and if he wishes, he says to him, "Take from the land corresponding to the money," and from the ziborit within it. And if the seller retracted, the buyer has the upper hand: if he wishes, he says to him, "Give me my money," and if he wishes, he takes corresponding to his money from the idit in this land. And according to the opinion of the Rosh and the Tur, as long as they have not retracted, the purchase is valid corresponding to the money he gave; and when one of them retracts, the purchase is void and the hand of the second is on top, as has been explained [the Gra]. And according to these two opinions, when he receives land, he receives it according to the current rate and not according to the rate they stipulated, since the purchase is void; also according to the second opinion, from the moment one of them retracted, the rate they stipulated then was automatically voided [ibid.]. And the practical difference between these two opinions is regarding a case where the buyer betrothed a woman with this land corresponding to his money, or transferred it to others while they had not yet retracted: for according to the Rosh and the Tur, it is like his and his betrothal is a betrothal and his purchase is valid, and according to the Rambam it is nothing, for it was not yet his.

But the Ramban, the Rashba, the Ran, and the Nimukei Yosef hold that the land corresponding to the money is acquired completely, and neither of them can retract and void it [ibid.]. The reason is that even though he goes in and out for the money, nevertheless, regarding the partial payment he gave, it was their intent that the acquisition remain for that portion, and the one who retracts is at a disadvantage, as I have written. However, when he takes land, he takes according to the price they agreed upon, since the purchase is valid according to this opinion [ibid.]. And if both of them retract and he must take back his money, and he has no money, he must pay him with the equivalent of money in movable property or in medium-quality land according to the law of a creditor, and according to the current market value, since when both of them retract, the purchase is certainly voided completely [ibid. subsection 15].

And some say that such is the law when the seller retracts regarding the money that was not yet given, the buyer has the upper hand in upholding the purchase corresponding to the money he gave, but he only takes from the ziborit within it, according to the law of one who sells half a field who only takes from ziborit, and according to the rate they agreed upon. And if he wishes, he may say: Since you retracted regarding the money I did not give, I too will retract regarding the money I gave, so give me my money. And if he does not have the money, he can compel him to give him from the idit within it according to the current rate, for since his desire is to receive the money and he does not have it, his power is as great as a creditor. But when his desire is for the upholding of the purchase corresponding to his money, he only takes from ziborit and according to the rate they agreed upon. And if the buyer retracts regarding the money he did not give, the seller has the upper hand; for if he wishes, he upholds the purchase corresponding to the money he received and gives him from the ziborit within it according to the rate they agreed upon, and if he wishes, he returns his money. And if he does not have it, he collects from the ziborit of his property, from any ziborit that the seller wishes [Netivot HaMishpat according to the Rosh and the Ran; and in the words of our teacher, the Rema, in section 10 there is a scribal error, and regarding ziborit it should say "according to the rate they agreed upon" and regarding idit "according to the current rate," and examine this carefully].

And regarding all that has been explained according to all opinions, that when the seller retracts the buyer has the upper hand, this is specifically when the buyer wants to give the full payment now and nevertheless the seller retracts. However, if the buyer does not have money and requests that he wait for him for more time, the seller can cancel the entire sale and the buyer does not have the upper hand, for he acts according to the law; and he returns his money to him, and if he does not have it, he pays him from medium-quality land like any creditor [ibid.].

That which we say, that when he comes and goes for the money he has not acquired it, this is specifically when we know that he is only selling because he needed the money. Everything is according to the assessment of the judge, for sometimes when a person is a debtor, he sells before the time of payment so that they will not see that he is pressed for money and his trade diminish. He does not want to receive the price of the sale from the buyer until he needs to pay his debts, lest he spend them while they are with him. Therefore, he set a time for payment, and when the time arrives, he presses the buyer to pay him his money and the buyer puts him off. If the judge sees that he is now compelled for the money and he comes and goes for the money, he has not acquired it.

There is one who says that "going in and out for the money" means that he went to seek his money two times, and it makes no difference whether he found him and requested it from him or whether he did not find him, provided that he revealed his intention by going to seek him. And specifically that he went in and out on the day that was set for him to pay him or on the preceding day; but before this time, even if he went several times, if he did not go on the day the time was set or on the preceding day, it is nothing. And even if he went in and out on the morrow after the day the time was set, the sale stands and they can no longer retract, for thus the sages, of blessed memory, assessed his intention: that had he been pressed for the money, he would have come on the set day or on the preceding day. And so too the reverse: when he comes on these days, even if he remained silent then at the time the buyer answered him that he does not yet have the money, and after several days the seller retracted, he has the right to do so, for from the moment he demanded it, the sale was voided when he did not give him the money. And on the day set for payment, the buyer has time the entire day; and even if the seller was with him many times on this day and he did not give it to him, but before dark he brought him the money, the sale is established and they can no longer retract. And one should not raise the difficulty: why do we need the reason for voiding the sale because he "went in and out for the money," for behold, since they set this day for payment and he did not pay him, the sale should automatically be voided? For it can be said: certainly if the seller had stipulated that he should pay him at such-and-such a time and if not the sale shall be voided, the sale would be void even without the reason of "going in and out for the money." But when there was no stipulation in the matter, but only that he set a time for payment, the sale is not voided by the fact that he did not give it to him at the time he set, except because he "went in and out for the money"; and without this reason, it was not his intention that because of the extension of time the sale should be voided. And in section 15 more will be explained regarding this with the help of Heaven.

According to what has been explained, it is called "coming and going for the money" in one of two ways: either the beit din knows that he only sold because he was compelled for the money at that time which he set, or it became clear to them that he only sold because of his necessity for the money at that time which he set, as in section 9, and then there is no need for the details that were explained in the previous section; or even if this did not become clear to the beit din, only that we saw him going to seek his money twice on the day he set or on the previous day, for by this itself it is clarified that the essence of his sale is because of his necessity for the money, for if it were not so, he would not have gone twice in one day. Therefore, if it is possible to attribute the reason for his going to seek the money to another reason, we attribute it. How so? For example, one who sold his field because of its poor quality, even though he is coming and going and demanding the money, [the buyer] has acquired everything and they cannot retract, for this fact that he pursues the money is not because he has not yet finalized and transferred ownership, but rather because he is anxious lest the buyer retract. And even though if he were not coming and going for the money, all the more so the buyer would not be able to retract, nevertheless he is afraid for himself lest the buyer push him off with "go and return" and find a pretext to cancel the purchase, and therefore he hurries to receive the money. And so too, one who sold his property because he wants to uproot his dwelling from here and live in another city is considered like one who sells his field because of its poor quality, for he is agitated to collect his money. And so too, merchandise that is prone to spoil, such as fruits and wines and the like, is like one who sells because of its poor quality, for his heart is anxious lest they spoil and the buyer find a pretext to retract, and therefore he wants to receive his money [Shevut Yaakov].

If one purchased something worth a maneh for two hundred and gave him partial payment, and the seller is coming and going to claim the rest of the money, it is a matter of doubt whether this is like one who sells due to the poor quality of the item or not. For it can be said that because he sold it to him at a high price, he fears that the buyer will retract, and by law he cannot retract—for instance, where the law of ona'ah does not apply—and nevertheless he fears that the buyer will find a pretext to cancel the sale. Or, perhaps there is no concern for this, and the seller does not set his heart to run after his money for this reason. Therefore, if either of them comes to retract, he cannot, because the sale is certain and the kinyan is finalized, while the cancellation is a doubt. And also the seller cannot cancel the sale if it increased greatly in value, even though he has the presumption of the original owner [Taz]. And even if the buyer is also not in possession of the land or the object, since the seller is also not in possession, the seller cannot cancel such a clear sale. However, if the seller seized from the sale that he sold an amount corresponding to the money remaining due to him, we do not remove it from his hand, for his seizure is effective in this case since he claims with certainty that he was pressed for money [ibid.]. And even though seizure is not applicable to land, nevertheless, since he seized it and holds it under his hand, we do not have the power to remove it from his hand. And whether he has the ability to cancel even that which corresponds to the money he already received depends on the opinions explained in section 5 and section 6. But another seizure, such as if he seizes a different object belonging to the buyer, he does not have the ability to cancel the sale with such a seizure [Sma]. And for the buyer, no seizure is effective when he comes to cancel the sale, for he cannot claim with certainty what was in the heart of the seller [Netivot HaMishpat].

And so too, if he sought to sell a field for one hundred zuz and did not find a buyer for one hundred, and he was forced to sell a field worth two hundred and received a portion of the money, and he goes in and out for the remainder of the money, he has not acquired it and both of them may retract, for he certainly needed the money in order to buy himself a field for one hundred. And if it is a case where, had he wanted to exert effort, he would have found a way to sell for a maneh and he did not exert effort and sold for two hundred, this is a doubt: is it like one who sells his field because of its poor quality, for in this case too it appears that it was poor in his eyes since he did not exert effort to sell for one hundred, and he does not nullify the sale by going in and out for the money; or perhaps it was not poor in his eyes, only that the exertion was difficult for him, and therefore he goes in and out for the money in order to buy another for one hundred. Therefore, the law is as I wrote in the previous section.

We have already explained in section 5 that regarding the law of one who "goes in and out for the money," the law of movables is like that of lands, for even if he pulled them and brought them into his house, if the seller "goes in and out for the money," he has not acquired them. On the contrary, in movables there is a greater stringency, for regarding lands it was explained there that the sale is established corresponding to the money he gave, but in movables this is only in a matter that is fit to be divided, such as grain and types of merchandise that are fit to be divided. However, that which is not fit to be divided, such as a living creature and the like, the sale is entirely void even corresponding to the money he gave, because it is impossible to divide and the second party does not consent to a partnership. And regarding land, even if there is not in the land corresponding to the money the fit measure that was explained in siman 171, nevertheless he acquires this measure because it is fit to be joined to other land [Sma]. And there are those who disagree on this, that in such a case it is like movables that do not have the law of division [Taz]. But when he said "let my earnest-money acquire," which he gave to him as earnest-money as I wrote in section 4, in this there is no difference between land and movables in any matter, and he acquires corresponding to his money as I wrote there.

Therefore, it is good advice for one who purchases land or movable property and does not pay the purchase price in full at the time of the kinyan, the buyer should see to it that the seller converts the remaining funds into a loan, for then it becomes like a separate matter and is not related to the kinyan. And even if he goes in and out for the money, or even if he does not pay him at all, the kinyan is not void [Chelkat Mechokek, Even HaEzer, siman 120, subsection 5]. However, if he did not convert it into a loan and set a time for the payment of the money and did not pay at all, the sale is void. But if he merely delayed and ultimately paid him, the sale is not voided by this. And there is one who says that even with the extension of time the sale is void, but this is not clear to me, for this is only if he sold it to him on the condition that he give the money immediately and he did not give it, for in this case the sale is certainly void and it is theft in the hand of the buyer; since he told him to pay him immediately, certainly the intent of the seller was that if he does not give it to him immediately, his sale shall not be a sale at all. But this is not so when he set a time for him and did not explicitly stipulate that if he does not give by the time the sale shall be void [as is understood from the Chelkat Mechokek ibid., and the words of the Netivot HaMishpat subsection 7 require further study, and the intent of the Rif must be as I have written, as is explicitly proven from what was written in the Tur and Shulchan Aruch, section 16, and examine this carefully].

One who purchases an object from his fellow and gave him the money, and erred in the count of the coins, and after some time the seller claimed from him and said to him, "The hundred that you gave me were only ninety," and he clarified that it was so—the purchase is acquired and he returns the ten to him even after several years, whether regarding movable property or regarding land, and even though the kinyan was only through money alone [Shach]. And specifically when this was after some time, but if this was on the day of the sale, that he came to him and clarified to him that there were only ninety, and he was coming and going for the money as has been written above [Netivot HaMishpat].

There are times when a kinyan of money for land is effective even though the seller does not receive the funds. How so? Behold, if Reuven said to Shimon, "Give a maneh to Levi and your purchase of my land shall be acquired for you," he has acquired it when he gave the money to Levi. For just as a guarantor becomes obligated through mere speech prior to the giving of money, as has been written in siman 129, so too Reuven is no less than a guarantor, for upon his word he gave to Levi, and Reuven became obligated to hand over his field to him. And Shimon does not need to say to Reuven, "Let your field be acquired by me through that which I gave a maneh to Levi," for the statement of the seller is sufficient [Sma].

And so there are times that even though the buyer does not give the money to the seller, but rather another person gave the money, the field is acquired by the buyer. How so? Behold, if Reuven said to Shimon, "Take a maneh and let your field be sold to Levi," once Shimon received the maneh, the field is acquired by Levi. And this law is learned from the acquisition of a slave, for just as if one says to the master of the slave, "Here is a maneh for you and let your slave be emancipated," once the master received the money the slave goes out to freedom, as is written in Yoreh Deah siman 267, so too regarding a sale. And if this Reuven gave all the funds for the field from his own, the buyer acquires even if he did not know of this at all, for one may act to a person's advantage in his absence [Ktzot HaChoshen]. But if the buyer must give more than the maneh, even though Reuven gives him this maneh as a gift, the buyer does not acquire without his knowledge, and he has not bought unless we know that the buyer desires this acquisition, such as if he made him an agent or if he said to the seller, "Your field is acquired by me through the money that Reuven gave you." And there are those who say that even if all the money is from Reuven and he gave them as a gift to the buyer, the knowledge of the buyer is required [Netivot HaMishpat]. And for the law, the primary view is like the first opinion; and see what I wrote in siman 182.

And so it is sometimes even if the buyer does not give money and the seller does not receive money; and not only that, but even if the buyer himself receives money and the field is acquired by him. How so? Behold, if Reuven said to Shimon, "Give a maneh to Levi and my field shall be sold to Levi," once Levi received the maneh from Shimon, the field of Reuven is acquired by Levi himself. For that which the seller does not receive the money is learned from a guarantor, and that which the buyer does not give the money is learned from a slave; and what does it matter to me if it was each matter individually or if both were as one. And if this requires the will of the buyer, its law is as I wrote in the previous section.

And not only this, but even sometimes the seller gives money to the buyer and this is the kinyan, such as when the buyer is an important person and the seller derives honor from the fact that the buyer accepts a gift from him. And the seller says to the buyer: "Take this maneh, and with this, let my field be sold to you." Once the buyer has acquired the money, the field is acquired by him, for what difference is it to me if the seller benefits through the receipt of money or if he benefits from the fact that the buyer accepts a gift from him? And the buyer does not need to say, "Your field is acquired by me through my receipt of the maneh," since he is speaking with the seller himself, the statement of the seller alone is sufficient, as in section 17 [Sma]. And such is the law regarding kiddushin, as I wrote in Even HaEzer siman 27. And some say that even regarding metaltelin the law is so; for even though silver regarding metaltelin is not a kinyan except regarding "Mi ShePara," nevertheless in such a case he acquires, for it is similar to chalifin. For just as he acquires through chalifin because of the benefit of the kinyan of the sudar that the seller holds, so too this benefit that the buyer accepts a gift from him is like chalifin [Ran, first chapter of Kiddushin]. And this is only according to the opinion that will be explained in siman 203, that for chalifin of equal value we do not specifically require a kelli. Therefore, if he gives him his entire field in exchange for the receipt of this gift, it is like chalifin of equal value. But if this silver that he gives to the buyer is only for the kinyan, and the buyer must pay the remainder to the seller, he does not acquire in such a case regarding metaltelin except regarding "Mi ShePara," for regarding chalifin we require a kelli, and this benefit is no better than silver itself when the seller receives it, and behold, money cannot become chalifin by a decree of the verse [Netivot HaMishpat]. And according to the other opinion that will be explained there, that even for equal value we specifically require a kelli, this kinyan does not exist at all regarding metaltelin except for "Mi ShePara," like the law of silver [ibid.].

Reuven who owed Shimon a maneh and the time for payment arrived, and Shimon said to Reuven, "I will sell you land for a maneh," and Reuven consented and gave him a maneh for the kinyan of the land, behold the land is acquired by Reuven. Shimon cannot say, "My intention was not at all to sell the land but rather to collect the debt, because I could not collect from you in any other way," for since Reuven does not have the ability to smuggle land and Shimon would always have the ability to collect his debt, we say that his intention was for a complete sale. However, with metaltelin in such a case, he may withhold the money for his debt and does not need to accept "mi she-para," since the time for payment arrived. However, if it is the will of the debtor to also pay him the debt and the sale shall be upheld, the authority is in his hand; and when the creditor does not consent to this, he accepts "mi she-para." And the reason for all this is that as much as we are able to uphold the matters, we must uphold them, and that which he says regarding what he thought in his heart, they are "matters of the heart," except in a place where there is a proven assessment for the "matters of the heart," such as with metaltelin and the debtor does not wish to pay the debt, we nullify the matters, for certainly his intention was to rescue his debt. Therefore, some say that if immediately when the creditor received the money from the debtor he said to him, "Know that my desire is only to collect my debt and not to sell my land," the law is with him [Netivot HaMishpat], for since he said it to him immediately after receiving the money, it appears clearly that his intention was only to collect his debt. And see what I wrote in siman 85.

A kinyan of kesef is only specifically with kesef or the equivalent of kesef in cash, but with a milveh one does not acquire. For example, if Reuven owed Shimon a maneh, and Shimon purchased land from Reuven for this maneh that he owed him, and there was no other kinyan between them, this is not a kinyan of kesef. Even though the loan is still extant, for a milveh is given for expenditure, and Shimon has nothing against him but a mere debt and has nothing with which to acquire. And just as we establish regarding kiddushin in Even HaEzer siman 28, that one who betroths with a milveh she is not betrothed, so too in a sale. Therefore, regarding a pikadon that the purchaser has with the seller, if the pikadon is extant or part of it is extant, he can acquire with it, for since a pikadon is not given for expenditure, it is like cash. And so too with a she'elah, where he lent him an object that returns in its original form, he can acquire with it even while it is still within the days of the she'elah, for an additional benefit in the object has now been added to him, in that he can also sell it [it appears to me].

One who purchases land from his fellow and they agreed upon the price, and he placed a mashkon for them, he has not acquired it, and whichever of them wishes to retract may retract. And thus our Sages, of blessed memory, said: "The maneh is not here, the mashkon is not here," for a mashkon is only for security for an obligation that preceded the mashkon, such as a loan, or where the kinyan was performed through another means and he became obligated to him for money, and he took possession of the mashkon for security for his obligation of the money he owed him. But to acquire through the mashkon itself, such that it should be like silver or the equivalent of silver, is nothing, since without the mashkon there is no kinyan here at all. Therefore, if he said to him, "Acquire through the body of the mashkon according to your money," he has acquired it, for he acquired the body of the object and it is not in the category of a mashkon at all. And this is effective according to all the poskim [Ktzot HaChoshen]. And also regarding kiddushin, it would be kiddushin in such a case, as written in Even HaEzer siman 29.

If he gave the seller a promissory note for the purchase money, there is a dispute among the poskim whether this is considered like silver or not. For some say that since he became obligated through the promissory note and his properties became liened, it is like silver and he acquires with it. And some say that even though his properties became liened, nevertheless, since the silver has not yet actually left his domain for the domain of the seller, this is not like silver [Ketzot HaChoshen]. And so it appears primary, for in every place a lien is not like his own, and behold there are things that extinguish a lien, such as hekdesh, chametz, and manumission; it follows that it is not like his own. And if he gave him a promissory note that he has against others, some say that he does not acquire when he is able to forgive the debt to the borrower [Shach]. And some say that he acquires, for even if he forgives the borrower, will he not have to pay him by the law of garmi, as written in siman 66? And even though regarding a woman in such a case she is not betrothed, as written in Even HaEzer siman 28, this is the reason: because a woman is ashamed to sue and her mind is not at ease, but a seller will sue him if he forgives [Ketzot HaChoshen]. And with a mamrani note that is written to whoever produces it, even according to the first opinion it is an acquisition [Shach]. And a promissory note of others is not similar to a promissory note that he gives to the seller himself, for with that of others the silver has already left his domain, but rather he has a lien on the properties of the borrower, and when he delivers the promissory note to him, the lien is also delivered to the seller. And with everything through which a woman is betrothed via kidushei kesef, such as with the benefit of the forgiveness of a loan, also regarding matters of sale he acquires [Tosafot Bava Metzia 46].

Our Sages, of blessed memory, said that this rule that money alone acquires land—in what case does this apply? In a place where it is not the custom to write a deed. But in a place where it is the custom to write a deed, he has not acquired it until he writes the deed, and both of them may retract, for the mind of the buyer is not resolved until the writing of the deed, whether the deed is a deed of acquisition or a deed of evidence. However, with a deed of evidence, when he writes the deed, he acquires retroactively from the time of the giving of the money, and with a deed of acquisition, he only acquires from the time of the deed [Beit Yosef]. Therefore, in a place where the custom is that as long as the confirmation of the courts has not come, the sale is not finalized, the acquisition is not finalized until it is confirmed in the courts; and when it is finalized, he acquires retroactively from the time of the acquisition. Without this, everything is according to their condition. And even in a place where they are accustomed to write a deed, if the buyer stipulated and said, "If I wish, I will acquire with money, and if I wish, I will acquire with a deed," and gave the money on this condition, this is upheld; and the seller cannot retract, but the buyer can retract. And so too, if the seller stipulated this, it depends on him and not on the buyer. And regarding chazakah and kinyan sudar, a deed is not necessary, as will be explained with the help of Heaven.

And in a place where they are accustomed to write a document and he gave a portion of the money, regarding which we explained that sometimes he only acquires corresponding to his money, this does not apply to a document. For a document does not effect acquisition in halves; specifically regarding money alone do we say that a portion of the money acquires a portion of the land, but since the acquisition is through money and a document, as long as he has not acquired the whole of it, he has not acquired even a portion of it. However, this only applies to a document of acquisition and not to a document of evidence [it appears to me]. And if they made a condition, everything follows their condition, for it is a great principle that any condition in monetary matters is valid.

A sale that was not a sale, and afterwards they consented that it should be a sale, requires a new kinyan, and the prior kinyan is nothing. For example, one against whom a false accusation was made, and the accusers wanted to take his lands by robbery, and he requested one of his friends to make him a deed of sale with witnesses for his lands, and there was a trust between them that he would not withhold them except until the danger passed; even though he received the money in the presence of witnesses, nevertheless, since the buyer also admits that it was only for a mere smuggling away from the accusers, the sale is void even when they later consented that the sale should be established, and they must perform another kinyan. And it is obvious that the deed they made previously is a predated deed and is disqualified even without this reason that has been explained.

If the seller says that there was a trust between them and the sale was only made for concealment, and the buyer denies it and there are no witnesses in the matter, the seller is not believed, for it is not within his power to uproot acquisitions with such words without proof, unless there is a proven assessment that it was only made to conceal, similar to the matter explained in Even HaEzer siman 90, where he did not leave anything for himself and was forced to do so, similar to the matter in the previous section and the like, and the buyer does not consume the produce [and even though in the Beit Shmuel ibid. subsection 31 it is explained that the buyer consumes the produce, that is because otherwise how would she conceal it from her husband, which is not the case here].