Siman 199

It has already been explained that the sages abolished acquisition through money for the benefit of the buyer, and the sages did not differentiate in their enactment; for wherever the merchandise is in the possession of the seller, even if this place is secure from accidents, nevertheless money does not effect acquisition. Logic dictates this, for if not so, we would also differentiate between when the seller is a righteous man who would certainly exert himself to save the property of others—and then acquisition would be through money alone. Rather, it is certain that they established a fixed enactment for the benefit of commerce. However, they only enacted this in the manner of regular commerce, but in incidental commerce that is uncommon, they did not enact regarding this. And why would they enact for an uncommon matter, since the way of commerce is not in such a manner?

Therefore, the sages said that sometimes money acquires. How so? If the buyer had money in his hand without a count and without a weight, and said to his fellow, "Sell me your object for these coins in my hand," and the seller took them and was not meticulous to know their count, the object is acquired to the buyer and they cannot retract, for this is an uncommon matter and the rabbis did not enact a decree regarding it. And even if the buyer knew how much money he had, but only said to the seller, "Sell to me for these," and the seller did not know, some say that he acquired, and the great poskekim agreed to this since this is not the way of commerce. And the same law applies if the money was known to both of them as to how much it was, but the purchase was not known even to the buyer alone, such as if a pile of fruit was lying there and he said to him, "Acquire these fruits for such and such," for this too is an uncommon matter. And specifically with fruits where the measure is not known to the buyer, or many movable items piled up and the buyer did not know what was in them; but for one object or many objects that he sees what they are, only that the appraisal of how much they are worth is not fixed, it is not acquired with money, for such commerce is very common and the buyer appraises them in his heart when he sees them [Netivot HaMishpat]. And see at the beginning of siman 209 and in siman 127.

And so too, Reuven who sold movable property to Shimon for a maneh, and Shimon acquired the movable property and became obligated to pay the money to Reuven, and afterwards Shimon had other movable property to sell, and Reuven said to him: "Sell them to me for the money that I have in your hand from the proceeds of the sale," and he said to him: "Yes," those movable properties are acquired by Reuven wherever they are. And all the more so if he sold him those same movable properties themselves, and even though he did not pull or lift them, for this too is something that is uncommon. But if he owed him a debt that was not on account of a sale, and he said to him: "Sell me these movable properties for the debt I have in your hand," and they both consented, he has not acquired them, for one does not acquire through a loan, as has been explained in section 190, for a loan is given for expenditure. And if it is difficult, for if so, even in a debt on account of a sale why does he acquire? It can be said: since it is on account of a sale, it is as if he never became obligated to him for money at all, but rather as if from the beginning they exchanged movable property for movable property, like one who exchanges a cow for a donkey, for since one has pulled one, the second is acquired wherever it is, as has been explained in siman 223 [Ma'aseh HaMelech and Levush]. But in truth, there are those who disagree on this and hold that this is also like a loan and he has not acquired. Therefore, when he says to him: "Sell to me for the money that I have in your hand," he has not acquired unless he says to him: "Sell to me for the benefit of the forgiveness of the money that I have with you," then he has acquired, for even in kiddushin she is betrothed through the benefit of the forgiveness of a loan, as has been explained in Even HaEzer siman 28, because the benefit is worth a perutah, and it is as if he gives him a ready perutah, and since this matter is uncommon, he acquires with a complete kinyan. But regarding the benefit of the forgiveness of a loan of a debt and not of merchandise, it is no better than ready money and he only acquires for "He who punished."

And so, if the movable property he sold is placed in the hand of another, and the seller said to the bailee, "Give them to so-and-so for I have sold them to him," and the buyer gave the money, he acquires it without meshikhah; for we say in this case "give is like acquire," just as regarding a debt. And one should not compare it to a gift, where we do not say "give is like acquire," as I wrote in siman 125, for since the seller cannot retract without a "He who punished," it is more similar to a debt than to a gift, and the seller cannot retract, as I wrote in siman 235. And if it was in the presence of the buyer, the buyer also cannot retract [Netivot HaMishpat siman 198 in the name of a Gaon]. And some say that we do not say in this case "give is like acquire," and he must say to him "acquire" [Shach siman 200, subsection 6, and see there section 4]. However, if he did not say to the bailee "give to so-and-so," according to everyone he does not acquire with money; and even though they are not in the possession of the seller, nevertheless they are in the possession of the bailee who comes from his power, and it is considered as if placed with him, as I wrote in the previous siman, section 4, regarding the members of the seller's household.

Our sages, of blessed memory, further said that there is a time when money acquires, for they established their words according to the Torah law regarding the sale of meat during four periods in the year: the eve of the last festival day of Sukkot, the eve of the first festival day of Pesach, the eve of Shavuot, and the eve of Rosh Hashanah. For during these times, people increase their festive meals and those who buy meat rely upon the sellers. Therefore, if a butcher had an ox worth one hundred dinars and took a dinar from a buyer to give him meat when he slaughters the ox, and the full value of the ox was not yet collected for him, we compel the butcher to slaughter against his will and he must fulfill his sale, since the primary joy of the festival for the buyer was dependent on this meat. Consequently, if the ox dies, it dies to the buyer and he loses the dinar, since it is in his domain. There is one who wrote that the same applies to any matter of a mitzvah, such as one who gave money for wine for kiddush, but there are those who questioned this [the Gra], for one should not compare one matter to another. Furthermore, with meat it was not possible for the buyer to perform meshikhah, for behold, the butcher would not slaughter it until he collected all his money, and the butcher's intent was to slaughter it on the festival day; therefore, our sages, of blessed memory, were stringent in this. But with wine for kiddush, he should have performed meshikhah on the eve of Shabbat. And perhaps this is why our sages, of blessed memory, did not enact that money should acquire meat for Shabbat as well, for behold, on Shabbat it is also a mitzvah to eat meat; rather, it is because on Shabbat the slaughtering must perforce be on the eve of Shabbat and he should have performed meshikhah, whereas on a festival day he can slaughter on the festival day. [And this is not such a strong proof, for on a festival day there is a greater obligation to eat meat, as there is no joy except with meat; nevertheless, regarding the halachah, the primary view is as I wrote in the name of the Gra].

Orphans as well—the sages established for them the Torah law, that one only acquires from them with money. Therefore, if the apitropos sold produce of orphans and the buyer performed meshikhah but has not yet given the money, and the price increased, the orphans may retract, because their property is only acquired with money according to Torah law. And if the produce decreased in price, the buyer cannot retract, for they only said this for the benefit of the orphans; but to their detriment, why should they be worse off than other people? And also, only in this specific detail—when one performed meshikhah from them and the price increased—did they establish for them the Torah law. But in other matters they are equal to every person, even if it would be for their benefit, due to the reasons that will be explained.

How so? If the orphans received the money but the buyer did not pull the produce, and it increased in price, they may retract like any other person, and they are not subject to "He who punished" [Tosafot Gittin 52a], for they did not institute the acceptance of "He who punished" for orphans. And if it decreased in price and the buyer wishes to retract, he may retract and he accepts "He who punished"; and we do not say that for their benefit we should establish them upon Torah law—that the buyer should acquire through the money—because harm could reach them if we were to say so, for if they should need money, people will not give it to them until they give the produce, and there would be a delay in their commerce. And if the orphans took produce and pulled it but did not give the money, and it increased in price, they have acquired it like any other person. And if it decreased in price, we also do not establish them upon Torah law so that they may retract, for if so, when they need to buy produce, people will not sell to them until they give money first, and sometimes they do not have the cash beforehand. And if they gave money but did not pull the produce and it decreased in price, they may retract as I have written. And if it increased in price, the seller may retract and he accepts "He who punished," for if we were to establish them upon Torah law to say that the money acquired for them, the seller would say to them: "Your produce was burned, as it was in your domain from the moment you gave the money" [Tur]. And one cannot say that when they are burned they should retract just as when they decreased in price, for it is not a logical reasoning to say so—that the produce in its high value should be in their domain, but when it is burned it should return to the domain of the seller [Sma]. And one should not raise a difficulty: if so, also in the previous section when they sold and the buyer pulled it, where we said that when it increased in price they may retract, would the buyer not say to them, "Your produce was burned"? For it can be said that there the buyer would not profit, for as soon as he pulled it, he was permitted to eat from it, and he is no less than a paid bailee, for this benefit is his wage [Tosafot ibid.], and he is liable if they were burned not by a complete accident; and as for a complete accident, the sages were not concerned, for it is not so common [Levush].

The Rambam wrote in chapter 7 of Arachin: One who redeems from the hand of the Hekdesh, if he performed meshikhah at a value of a maneh but did not manage to give the money until it stood at two hundred, he gives two hundred, as it is said, "And he shall give the money and it shall be established for him"—through the giving of the money it is his. If he performed meshikhah at a value of two hundred but did not manage to give the money until it stood at a maneh, he gives two hundred; the power of an ordinary person should not be more stringent than the power of Hekdesh, and behold, he acquired it through meshikhah and became obligated for the money. If he redeemed it at two hundred and gave the money but did not manage to perform meshikhah until it stood at a maneh, he has already acquired it through the giving of the money and he pulls his own, and Hekdesh has merited the two hundred. If he redeemed it for a maneh and gave the money but did not manage to perform meshikhah until it stood at two hundred, what he redeemed is redeemed, and he only gives the maneh that he already gave; and we do not say here "the power of an ordinary person should not be more stringent than Hekdesh," for even an ordinary person cannot retract until he receives "He who punished," and Hekdesh is not fit to receive "He who punished." Thus far his words. He wrote further in chapter 9 of Mekhirah: The treasurer who bought for Hekdesh or who sold, his hand is on the upper side. How so? If he gave the money of Hekdesh, even though he did not perform meshikhah on the produce, if they increased in price, he has acquired according to Torah law; but if the produce decreased in price, he retracts, for behold, he did not perform meshikhah, and the power of an ordinary person should not be more stringent than the power of Hekdesh. Thus far his words. And there are those who disagree with this, since with an ordinary person there is also "He who punished," Hekdesh also does not retract, as the Rambam himself wrote this reasoning [Ran, first chapter of Kiddushin]. And it must be said that the Rambam holds that specifically an ordinary person from Hekdesh acquires with money, but Hekdesh from an ordinary person is like an ordinary person from an ordinary person [Kesef Mishneh]. The Rambam further wrote there: And so too if he sold an object of Hekdesh and the buyer performed meshikhah but did not give money, and the object decreased in price, he has acquired, so that the power of an ordinary person should not be more stringent than the power of Hekdesh; but if the object increased in price, he retracts, for behold, the treasurer did not take money, and Hekdesh is only acquired with money, as it is said, "And he shall give the money and it shall be established for him," and the treasurer is not obligated to receive "He who punished." Thus far his words. And in the Yerushalmi, chapter 3 of Ma'asrot, it is stated that a purchase that establishes an obligation for ma'aser was with coins alone, for if not so, perhaps he will take with his mouth to taste and then retract, and it will turn out that he ate tevel retroactively [and see Shach, Yoreh Deah siman 331, subsection 118, and it requires further study].

Our teacher, the Rema, wrote that hekdesh and tzedakah acquire with money, and therefore if one gave money to hekdesh for a purchase and the price increased, the hekdesh cannot retract, thus far his words. And the same applies in the reverse: if the gabbai took from someone and gave money, the gabbai cannot retract even when the price decreased, since even regarding a commoner there is a "mi she-para." And according to the opinion of the Rambam that we cited, the gabbai can retract. And the intention of our teacher, the Rema, is not that our hekdesh and tzedakah have the law of hekdesh, for it has already been explained in siman 95 that their law is like a commoner; rather, his intention is that since from the Torah money acquires, and the enactment of the Sages of blessed memory was for the benefit of commerce as has been written, and hekdesh and tzedakah are not commercial entities, the enactment was not applied to them. And so is the primary law, since the commentators of the Shulchan Aruch did not disagree with him, unlike the one who differs in this.

There are some of our teachers who wrote that even though according to the Torah the acquisition is through money and not through meshikhah, nevertheless, in a case where there is no acquisition through money—such as in a gift or where he sold it to him for a prior debt—it is acquired through meshikhah according to the Torah [Tosafot Avodah Zarah 4a]. And there is one who disagrees regarding this and holds that even in a gift, another acquisition is required according to the Torah [Shitah Mekubetzet in the name of the Ramban].