Siman 191

With a document, how so? If he wrote to him, "My field is sold to so-and-so son of so-and-so," once the document reaches the hand of the buyer, he has acquired it, even if there are no witnesses there at all, only the signature of the seller alone. For witnesses were only created in civil laws for falsehood, so that he should not be able to deny it; and since the seller admits that this is his signature, or there are witnesses to the signature that it is his, the kinyan is finalized. And he must write which field he is selling to him. And so too regarding a gift, once he wrote to him, "My field is given to so-and-so son of so-and-so," he has acquired it, as was written in siman 245. And if he wrote indefinitely, "My field is sold" or "given to you," and did not specify the name of the buyer or the recipient of the gift, and Reuven comes with this document and says that he is the buyer or the recipient of the gift, he is believed, since he holds the document, and we are not concerned that perhaps he gave it to another and it fell from him and this one found it, for we are not concerned about falling, as was written in siman 50 regarding a loan. And even though there is a distinction there between a document with witnesses and a document with his own signature, that is because regarding his own signature he is believed to say "I paid," and therefore he is also believed to say that he gave it to another with a migo of "I paid"; but regarding a sale or a gift, this does not apply. And if only his signature was verified, we give the field to this holder. And if Reuven admits that it was sold to another and the other delivered it into his hand, it is nothing when he does not have a document of sale from the other. And so too, if it is written in the document "to any bearer of this," it is nothing; even though regarding a loan this is effective, that is because of the lien on the person, but regarding a sale or a gift where a kinyan is required, this is not a kinyan. And if the seller is not signed on the document, two witnesses are required to sign on it, but one witness is nothing even if the seller admits, for one witness on a document is nothing when there is no other kinyan besides this document. And if the second witness says that the document was delivered in the presence of both of them, even though only one is signed on it, it is a kinyan according to the poskim who hold that "witnesses of delivery effect the legal severance." And even if both of them are not signed on it, it is a complete document, as was written in siman 51, section 2. And a document on which two witnesses are signed, and each one did not know of the signature of his fellow, nevertheless it is a complete document; for even though regarding a loan it is not like a document regarding liened properties, as was written there, that is because to collect from liened properties requires the spreading of a report, and in such a case there is no report, but regarding a document of kinyan, the spreading of a report is not required [so it appears to me].

Even though regarding a loan document one must write on something that cannot be forged, as I wrote in siman 42, nevertheless, a document of acquisition may be written on whatever one desires. For specifically a document that stands as evidence must be fit to endure for many days, but a document of acquisition is only needed to acquire with it for the moment [Sma]. Therefore, whether he wrote for him on paper, or whether he wrote for him on a shard, and even on an olive leaf or other fruit, even if it is worth nothing [the Gra], it is nevertheless an acquisition, and once the document reaches his hand, he has acquired. The paper and the ink must belong to the seller or the giver, as it is written, "the book of the acquisition," and the buyer shall pay the scribe's fee, as I wrote in siman 238. And there is one who says that this is only when the document is merely a document of evidence for many days, but in a document of acquisition, the seller must pay the fee or transfer ownership of the fee to the buyer [Ktzot HaChoshen]. But this does not seem so from all the poskim; rather, only the paper and the ink must be from the acquirer, and not the fee for the writing [Netivot HaMishpat]. Or, it is possible that the sages transferred the fee for the writing to the seller [the Ramban]. But in any case, the buyer or the recipient of the gift pays the scribe's fee, and such is the primary ruling [and so it appears in Bava Batra 168a, which asks "it is obvious," and examine there]. And if they write a document for the seller without the buyer, or for the buyer without the seller, it will be explained there with the help of Heaven.

Our Sages, of blessed memory, said that regarding this rule that a deed alone effects acquisition without money, in what case does this apply? In one who sells his field because of its poor quality, or because he desires to uproot his dwelling to another city, as is written in siman 190, section 11. For in such a case, it is certainly pleasing to the seller to transfer ownership of his field to the buyer through the deed alone so that the buyer does not retract. However, regarding other lands, even if the deed reached the hand of the buyer and with witnesses, nevertheless he has not acquired it until he gives the money, because the seller's mind is not resolved until the giving of the money. And he must give all the money; and that which was explained there, that with partial payment he acquires everything in a case where he does not repeatedly come and go for the money, this is specifically where he gives the money for the purpose of acquisition. But this money is not for the purpose of acquisition, for behold, he acquired through the deed; rather, he gave it to him as payment. And as long as he has not given him all the money, there is no proof here that it is pleasing to the seller that he should acquire, and therefore he does not acquire even corresponding to his money, for since the acquisition is through a deed, there is no partial acquisition [Beit Yosef in the name of the Ran]. And specifically regarding acquisition by deed is the law thus; but through chazakah, he acquires completely even without the giving of money and without a deed if he does not repeatedly come and go for the money, because he performed an act upon the body of the land [ibid. first chapter of Kiddushin]. And so too with acquisition by chalupin, he also acquires without money or a deed, for the acquisition of kinyan sudar is powerful [ibid.] because one acquires with it also regarding movables, and chalupin are like actual money. And regarding movables, a deed is not applicable, for movables are not subject to a deed [Bava Kamma 79b]. And it is impossible to distinguish in kinyan sudar between movables and lands, for they are derived from a single verse [it appears to me]. And if he sold him land for a debt that he owed him from before, and wrote him a deed "my field is sold to you," he has acquired it completely, for behold, he does not need to receive money [Sma]. And therefore, if the buyer needs to complete the money for him because the debt does not correspond to the entire land, he has not acquired until he completes it for him. And so too, if the debt was in a deed, he has not acquired until he returns his deed to him [it appears to me].

If the buyer stipulated that he should acquire it with the shetar alone, it is effective even in a case where he is not selling due to its poor quality [Netivot HaMishpat]. And even if the seller remained silent, for in such a case silence is considered like an admission [it appears to me]. And similarly, if the seller swore or gave a hand-clasp or accepted a vow that he would not retract, he acquires it with the shetar alone [ibid.]. And similarly, if the seller converted the money into a loan against the buyer, he also acquires it with the shetar alone. But with money without a shetar, he does not acquire it even in a case of selling due to its poor quality in a place where it is the practice to write a shetar, for the buyer's mind is not at ease since he gave money and has nothing to show [ibid.].

The primary formulation of a kinyan shetar is that he should write in the present tense, "my field is sold to you," which implies explicitly that he is selling it to him with this shetar. He should not write "I have sold," which implies that he already sold it and is merely a language of admission. Nevertheless, our teachers wrote that regarding our documents, even though it is customary to write in the past tense, since the matter of the sale is explained in them in detail, and from the rest of the language of the shetar it is proven that he is selling it to him now, there is no concern in this that he writes "I have sold." It can also be interpreted as the present tense, as it is written, "I have given the money for the field; take it from me," and its meaning is "I am hereby giving," for afterwards Avraham gave the money to Ephron. For in a matter of purchase, once the matter is finalized, they speak in the present as if it has already passed. However, if he explicitly wrote in the language of the shetar that it is only for evidence alone, the land is not acquired through it and requires another kinyan. This is only in a place where they acquire with a shetar alone, but in a place where they acquire with money and also write a shetar, a shetar of evidence also is effective for the money and they acquire with it [Sma], for even with such a shetar the mind of the buyer is at ease, and on the contrary, with this shetar he acquires retroactively, as I wrote in siman 190, section 25.

If there is a denial regarding the giving of the money between the seller and the buyer, where the seller says, "You have not yet given me the money," and the buyer says, "I gave it to you," even though the seller has the presumption of the original owner over this land and the burden of proof is on the one who seeks to extract from his fellow, nevertheless, if it is the custom of the place to receive the money from the buyer and afterwards to write a deed, and it is written in the deed that the seller received the money, the buyer is believed. For it is clear that if he had not received the money, he would not have written the deed, and certainly he would not have written that he received the money. But in a place where they write the deed and afterwards give the money, the buyer must bring proof, as the land is in the presumption of the seller, and that which is written in the deed—that he received the money—is written in reference to the future. Likewise, if the receipt of the money was not mentioned in the deed at all, even in a place where they give money and afterwards write a deed, the law is with the seller. Since there is a flaw in it, in that the giving of the money was not mentioned, there is reason to fear that he deviated from the custom and wrote the deed beforehand, and therefore did not mention the money [Sma]. And some say that this is only regarding a deed of acquisition, but if the acquisition was through another means, such as through kinyan sudar or through chazakah or through partial payment, and the deed is merely for evidence, the buyer is always believed even if it is not written in the deed that he received the money [Netivot HaMishpat]. And the reason is that since he already acquired it through some kinyan, the land stands in the domain of the buyer, and the seller is the one extracting, and the burden of proof is upon him. And some say further that even with a deed of acquisition, the seller is not believed except in a place where the essence of the sale can be voided, such as in a place where they do not acquire with a deed alone; and when the seller says that he has not yet received the money, the sale is void according to his words, and it is like one who claims regarding the essence of the sale, and we establish the land in his presumption, and the buyer must bring proof. But in a place where they acquire with a deed alone, such as where he converted the money into a loan, or in the case of one who sells due to its poor quality, where the sale is established and the claim of the seller is only regarding the payment, it is like an oral loan and the buyer is believed with a shevuat hesset [Maharit, and so it appears from the Responsa of the Rashba brought in the Beit Yosef]. And likewise, if the buyer already took possession of the field, he is believed even without a deed, for there is a presumption that the seller would not have allowed him to descend to the field until he gave him the payment. Therefore, if it is known that the buyer possessed it even before the sale, such as if he rented it or the like, or if he took possession not in the presence of the seller, his possession is not proof. Likewise, if the buyer brought witnesses of the kinyan but did not convert the money into a loan, and there is no deed in the hand of the buyer, the seller is believed to say that he has not yet received the money, and the buyer must bring proof [Netivot HaMishpat]. And all these are matters of reason. And in any place where one must bring proof, he can administer a shevuat hesset to the second party and say to him, "Swear that it is as you say, and it shall be according to your words." And in any place where a deed is mentioned, the deed must be verified or he must be able to verify it; without this, it does not have the status of a deed.

If one sold land to another with a shtar and said to him, "acquire it for yourself after thirty days," and the shtar was torn, or burned, or lost within the thirty days: if he said to him, "acquire it for yourself from now and after thirty days," he has acquired it, for the kinyan began immediately, and at the time the kinyan took effect, the shtar existed in the world. But if he did not say "from now," he has not acquired it, for the kinyan began after thirty days, and at that time the shtar did not exist; and with what would he acquire it then? And the same law applies to a kinyan of chazakah: if the taking effect of the acquisition was after thirty days, and when the time arrived his chazakah was not recognizable—such as if he performed the chazakah by locking a door or by breaking the ground—he does not acquire it. However, when the chazakah remains extant, such as if he built a fence or the like, he certainly acquires it [Ketzot HaChoshen at the beginning of HaMafkid]. And similarly, with a kinyan of chalupin, he does not acquire it in such a case [Shach], for the sudar with which he performed the kinyan was returned immediately to its owner, as is the custom in kinyan sudar. But with a kinyan of kesef, he acquires it even in such a case, and even if he consumed the money or it was lost within the time; for since if the sale is not fulfilled he is obligated to return it to the buyer, it is as if it is still in existence. And there are those who say that if the seller did not use the money and it was lost through an unavoidable accident within the time, he does not acquire it without "from now"; for since he did not use the money, he is not liable for accidents, and the kinyan is not sustained after the time [see Ketzot HaChoshen and Netivot HaMishpat].

There are places where it is customary, when one sells a house or a shop or land, to receive a kinyan sudar also from the wife of the seller; and they receive a kinyan from her first and afterwards from her husband, and they write in the kinyan that it was the kinyan of the wife and then her husband. The reason is so that she should not say, "I did it to please my husband," as is written in Even HaEzer siman 90. And even though regarding the essence of her kinyan there is no need for it at all, for the wife has no power to delay the sale, as she has only a lien for her ketubah when the time comes for her to collect upon the death of her husband or when he divorces her and she has no other place from which to collect—but as long as the husband is alive and has not divorced her, she is unable to delay, as is written there—nevertheless, they practiced thus. And according to the custom, she is unable to protest even when the time for her collection arrives, because she removed her lien from this land. But this is obvious: that she is not liable for the guarantee if they seized it from the buyer. And even though according to the language of the deed it implies that she is also included in the guarantee, nevertheless, the matter is clear that the intent of the guarantee is only upon the man and not upon her [Beit Shmuel ibid. subsection 63], unless it is written explicitly that she accepted the guarantee explicitly.