Siman 200

A person's domain, such as his house, his courtyard, or his field, acquires movable property for him that is placed there, just as it acquires in his hand, for a person's domain is called "hand," as it is written: "and all the best of his master was in his hand," and likewise: "and he took all his land from his hand." Therefore, when the movable property is placed in the courtyard of the buyer, and the seller knows of this and sold it to him and finalized the price of the purchase with him, the purchase is immediately acquired by the buyer. This is not the acquisition of "pulling" into his domain, for with "pulling," the seller must say to him, "pull and acquire," and in all acquisitions one must say so, as has been explained. But when the purchase is in the domain of the buyer, once they have agreed between them on the purchase, the buyer acquires immediately. And so it is implied from the Rambam at the beginning of the fourth chapter of Laws of Sale, and so it is evident in the Gemara [Bava Batra 86a, there it is where he said to him "go and acquire," but in the domain of the buyer he does not need to say so; and so it is evident from the Rashbam there 85a, s.v. "the buyer acquires immediately"]. And according to the opinion of the Rambam in the tenth chapter of Laws of Hiring, even when his domain is rented to others, it acquires for him. And so ruled one of the great later authorities [Shach, siman 313].

A person's chatzer does not acquire for him unless it is guarded with his knowledge, such as when it is surrounded by partitions even if it is not locked and not roofed [Netivot HaMishpat], or even when it is not guarded if the buyer is standing at the time of the kinyan at the side of that domain; and see in siman 268, section 6. And the reason is that when he is not standing there and it is not guarded with his knowledge, it is similar neither to his hand nor to his shaliach, for his hand and his shaliach are guarded, while this is not guarded at all. But when he stands there, he is guarding it at the time of the act of kinyan, for we learn kinyan chatzer from "hand" and from "shlichut," as will be explained. And some say that in a chatzer that is not guarded, it is effective only specifically when he stands inside it, but outside of it is not effective. And even according to the first opinion that it is effective, this is when he stands exactly at its side, similar to a hand, but at a slight distance, even if he is able to guard it, it is not effective. And even when standing inside it, we also require that he be able to guard them; therefore, in a large field where the movables are placed at a distance from him such that he cannot guard them, he has not acquired. And so too regarding a metziah, it has not gained title for him [Netivot HaMishpat]. And so too when his shaliach or one of the members of his household stands there, it is like himself, for a person's shaliach is like himself. And therefore it is not effective if a katan or a Cuthean stands there, for they are not subject to shlichut. And it is possible that a Cuthean is effective, for we do not require shlichut in this, but rather guarding with the knowledge of the buyer, and he is no worse than a lock; and since he is a sentient being, it is effective. And so it appears to be the primary view.

And there are those who say that even when the courtyard is guarded according to the knowledge of the seller, in that he is standing inside of it, even though it is not guarded according to the knowledge of the buyer, the buyer has acquired it; for specifically regarding a lost object, where there is no other mind to transfer ownership, we require that it be guarded according to the knowledge of the one who merits it, as I wrote in siman 268. However, regarding a sale or a gift, where the seller or the giver transfers ownership to him, he merits it by means of the courtyard guarded according to the knowledge of the one transferring ownership. Our teacher, the Rema, decided in favor of this opinion, and there is one who wrote that it is a legal doubt [Shach].

And if the movable property was in the domain of the seller or in the domain of another person with whom they are deposited, the buyer does not acquire them until he performs one of the modes of kinyan that have been explained. However, if the buyer rented the place where the movable property is placed, for now the place is like his domain and acquires his objects for him, as even rental is like a sale regarding this matter. And so too if he lent him the place, and he performs a chazakah on the loan and the rental according to the law of chazakah of land [see Shach siman 202, subsection 3]. And in the domain of another person, it is effective even without the transfer of the domain, such as if the seller says to the owner of the courtyard, "Acquire this object for so-and-so," and he said that he acquires it on his behalf, it is acquired immediately because one may acquire a benefit for a person in his absence; for just as his hand acquires for him, so too his courtyard acquires for him. And even if he did not say "acquire for so-and-so" but rather "give it to so-and-so," and he accepted upon himself to give them to him, the buyer has acquired, for "give" is like "acquire" [Beit Yosef]. And some say that since he is not handing them over now to his hand, but rather they were already deposited with him, we do not say "give" is like "acquire" [Shach]. However, when the buyer was also present at this standing, certainly "give" is effective, for he acquired by the law of "a standing of the three of them," and he does not need the acquisition of his courtyard [Netivot HaMishpat], and the buyer also cannot retract. But not in the presence of the buyer, rather that he said "acquire for so-and-so" or "give" according to the first opinion, certainly it acquired for him; but nevertheless, the buyer can retract, for his hand is on top as written in siman 235 [ibid.]. And if the buyer made the owner of the courtyard an agent to acquire it on his behalf, he cannot retract [ibid.]. And all this is specifically by the command of the seller, but without his command, such as if Reuven bought from Shimon movable property that is placed in the domain of Levi, and Reuven requested from Levi that his courtyard acquire it for him, he has not acquired without the knowledge of Shimon the seller. And it is not effective for Levi to say, "Let my courtyard acquire for Reuven," until he says so with the knowledge of Shimon. And even if the buyer, after his purchase from Shimon, bought the place from Levi, we do not say that his courtyard acquired for him, since the seller did not know of this at the time he sold to him, for every kinyan must be with the knowledge of the transferor [it appears to me].

And if the movable property is placed in the domain of the seller, it is not effective for him to acquire it on behalf of the buyer by saying, "I hereby acquire on behalf of the buyer these movable objects which he purchased from me," or by saying, "My courtyard shall acquire it for him," until he leases the place to him and grants him ownership through one of the methods of acquisition effective for land. The reason is because a person cannot grant ownership to his fellow of his own property except through another, for a thing can never leave his domain through himself. Similarly, he cannot acquire through his minor son or daughter, even if they are not supported by him, see there. Regarding adult children who are supported at his table and regarding his wife, there is a dispute, as I wrote in Orach Chaim siman 366, and see what I wrote in siman 270 [it appears to me].

When another person grants him acquisition through his courtyard, the courtyard must be guarded with the knowledge of the other person; but when the buyer borrowed or rented the place from him, it must be guarded with the knowledge of the buyer, for the owner of the domain requires that the domain be guarded with his knowledge. Therefore, if the lessor also has objects in that same courtyard, and there is no partition separating the sold item from his objects, it is not called a guarded courtyard regarding the buyer who is the renter [Beit Yosef], unless he is standing at the side of the courtyard. However, when the courtyard belongs to the buyer himself and the objects he purchased from the seller are placed in it, even though other objects of the seller or of others remain there and there is no partition between them and the sold objects, it is nevertheless called a guarded courtyard with the knowledge of the buyer; for since the courtyard itself does not belong to them, their status is like a guest who cannot nullify the guarding of the owner of the courtyard himself [Netivot HaMishpat]. But when the seller rented him his courtyard where the acquisition is placed, there must be a partition separating the movables of the seller himself from the sold items, for otherwise it is not guarded with the knowledge of the buyer, unless he is standing at its side. However, according to the opinion in section 3 that it is effective if it is guarded with the knowledge of the seller, he acquires even when they are mixed together [Shach and Taz]. And if the seller himself has no movables there, only those of others to whom the seller gave permission to place them there, and they are mixed with the acquisition, it is possible that they do not nullify the guarding of the buyer, for since the seller rented him the courtyard, he is like the master of the house regarding others, and so it appears primary; and the law is the same when he rented from others as well [it appears to me].

From the words of the Gemara [Bava Metzia 10b] it is explained that the chatzer of a man is derived from agency, and the chatzer of a woman is derived from "hand." This is the opinion of the Rif. However, the Rosh holds that when he is standing beside it, even for a man he acquires by reason of "hand," since it is adjacent to him like his hand; and in a guarded chatzer, in his opinion, it is by reason of agency. According to the Ran, in all cases a chatzer is by reason of "hand," even for a man, for his chatzer acquires any beneficial thing for him and is considered like an extended hand. We have already explained in siman 194, section 12, that a Kuti has a chatzer. Regarding Hekdesh, some say it has no "hand" [Tosafot, Bava Batra 79a], and therefore if one found an object in a synagogue he has acquired it, and we do not say that the chatzer shall acquire it for Hekdesh because Hekdesh has no "hand" [Magen Avraham, siman 154]. And some say there is acquisition for Hekdesh, for granted that it has no "hand," nevertheless it should acquire by reason of agency, for perforce there is agency for Hekdesh, as the Kohanim are the agents of the Merciful One [Tosafot Yom Tov, chapter 3 of Me'ilah]. The main point of the law is that for a gift or acquisition from ownerless property, Hekdesh acquires through its domain, and certainly through the treasurer by reason of agency. However, regarding a lost object, agency is not effective because it is a disadvantage to others, and the Torah did not make them an agent to disadvantage this person and benefit Hekdesh; and regarding money, he must be the agent of the owner of the money [Nimukei Yosef, first chapter of Bava Metzia]. Even the treasurer does not acquire a lost object on behalf of Hekdesh [Netivot HaMishpat]. And even though according to the Rif agency perforce is effective for a lost object in a chatzer as is proven in the Gemara there, this is from a rabbinic enactment [Shitah Mekubetzet], and for Hekdesh they did not enact this. A rented or borrowed chatzer is like the hand of the renter or the borrower; but only regarding a lost object in the chatzer of which the renter is unaware, it is not acquired by the renter but only by the lessor, for he did not rent it with this in mind [ibid.].

Our sages, of blessed memory, said [ibid.] that a person's four amot acquire a found object for him, for when the found object reaches within his four amot, it acquires for him. This matter is an enactment of the sages so that they should not quarrel, as written in siman 268. Specifically in a side alley or at the sides of a public domain where the public does not crowd there, or in a field that has no owners, there they enacted the kinyan of four amot. However, in a public domain where many walk there and the four amot of this one enter into those of that one, there is no benefit in the enactment and there is no such kinyan there. Likewise, in the domain of others, it is impossible to enact that the four amot should be like his own. Therefore, there are some of our teachers who hold that also in a sale and a gift there is this kinyan, and some say that only regarding a found object did they enact it so that they should not quarrel upon finding a found object [Ritva, and the Shach brought it in siman 243] and not in a sale and a gift. And our teachers, the authors of the Shulchan Aruch, wrote without specification like the first opinion, and such is the primary view, for in the Yerushalmi it is explicitly stated so, and even if the movables preceded the buyer [Sma]. And one should not ask that if so, why did they enact meshikhah, for it can be said that meshikhah is a Torah kinyan, and furthermore, meshikhah is effective even when he stands outside the four amot and pulls [Netivot HaMishpat]. And furthermore, in meshikhah it is effective when he appoints an agent to pull on his behalf, but regarding four amot agency is not applicable, for the enactment of the sages was only for the one standing there [it appears to me]. And furthermore, when the seller preceded into the four amot of the object, the buyer no longer acquires through those four amot [ibid.]. Therefore, in what we explained in siman 198, section 13, they have the kinyan of four amot when the buyer precedes to the four amot of the merchandise, because all the places mentioned there have the law of a side alley [see Ran, Nedarim 34b, starting with "Rava said," which implies somewhat that there is agency in four amot, but from the Rosh there it is explained as I have written].

From all that has been explained, we have learned that a courtyard that is not guarded and he is not standing beside it, the courtyard does not acquire. This is not like the one who wishes to say that since in a sale or a gift there is the "mind of another" granting it, it does not require guarding at all, because no person can take it except with the consent of the grantor, and he has granted it to this man; thus it is found to be guarded on the part of the grantor for the recipient, and even though it is not guarded from other people, nevertheless they cannot merit it [Ktzot HaChoshen in the name of Shita Mekubetzet]. For from all the Rishonim the opposite is clear: that since the courtyard is not guarded and he is not standing beside it, this is not an acquisition of a courtyard. So wrote our teacher, the Beit Yosef, and such is the primary ruling [and what was written from Bava Metzia 102a, behold the Rif and the Rambam and the Shulchan Aruch in siman 268 omitted this, and also for the Rosh and the Tur who ruled so, one can distinguish simply; and delve into this].

Just as a person’s courtyard acquires for him, so too a person’s vessels, in any place where he has permission to place them—such as in a side-alley, or on the sides of the public domain, or in a courtyard belonging to both of them—acquire for him. Once the movable goods have entered into the vessel with the knowledge of the seller, even if not by way of measuring, neither of them can retract; for this is like one whose goods were placed inside his house, as vessels have the law of a courtyard. And even if the vessel stands in a domain that is not guarded, he has acquired [Netivot HaMishpat], for behold, a side-alley is a domain that is not guarded. A minor, whose courtyard does not acquire for him as written in siman 243, his vessels also do not acquire for him. Therefore, a person’s vessels do not acquire for him in the public domain, nor in the domain of the seller, unless the transferor said to him, "Go and acquire with this vessel." The same law applies if the seller gave him permission to place his vessels in his domain; he has acquired even when he did not say to him, "Go and acquire" [Shach]. And some say that without "Go and acquire" it is not effective [Netivot HaMishpat]. In the public domain, even when he said to him "Go and acquire," it is not effective, for what benefit is his statement in a place where even he has no authority [Sma].

And so too, if he purchased the vessel from the seller and performed hagbahah and afterward placed it there in the domain of the seller, and then returned and purchased the produce from him—since they entered into this vessel, he has acquired them. For due to the benefit of the seller in the sale of the vessel, he is not fastidious regarding its place, and there is no need to say to him "go and acquire," even according to the latter opinion in the previous section that the granting of permission is not effective. And just as the vessel of the buyer does not acquire in the domain of the seller without "go and acquire," or without permission according to the first opinion, so too the vessel of the seller does not acquire for the buyer even though it is in the domain of the buyer, unless he said to him "go and acquire," for the domain and the vessel obstruct one another. Nevertheless, they are not similar to each other, for the vessel of the seller in the domain of the buyer is effective through measurement when he measured into the vessel, for it is as if he is lending him the vessel; but the vessel of the buyer in the domain of the seller is not effective through measurement unless he said to him "go and acquire" [Netivot HaMishpat].

All that has been explained is the opinion of the Rambam, of blessed memory, in the fourth chapter of Hilkhot Mekhirah. However, the opinion of the Rosh and the Tur is that the vessels of the buyer in a side-alley or the like, in any case where they are not in the domain of the buyer, his vessels do not acquire for him unless he measured into his vessels or [the seller] says to him "go and acquire." The reason is that certainly it was not the intent of the seller that his vessels should acquire for him since they still lack measurement [Tur]. Therefore, regarding a matter that does not require measurement or where the measurement is known, his vessels acquire for him even without measurement [Netivot HaMishpat]. In the case of the vessels of the seller in the domain of the buyer, it is not effective even if the seller said to him "go and acquire," and certainly measurement is not effective. However, the vessels of the buyer in the domain of the seller are effective when he says to him "go and acquire." The reason is that when the vessel belongs to the buyer, even though the domain is not his, nevertheless when he says to him "go and acquire," he reveals his intent that he is not particular about the place where the vessel is placed. This is not the case regarding the vessels of the seller in the domain of the buyer, as the vessel is not acquired by him through his speech "go and acquire" [Tur], unless he transferred ownership of the vessel to him through a kinyan or through lifting.

Regarding the primary law, for the Rambam, of blessed memory, holds that the buyer's vessel in the seller's domain, or the seller's vessel in the buyer's domain, does not effect a formal acquisition because he holds that according to the essential law, the vessel is not nullified to the domain nor is the domain nullified to the vessel. However, the Rosh holds that this is a legal doubt whether the domain is not nullified to the vessel or the vessel to the domain; and it is also certain that one of them is nullified to the other, only we do not know which of them it is. Therefore, the reason he does not acquire is due to a legal doubt. There is a practical halachic difference in this if it happens that both occur with one buyer and seller—one acquisition with the buyer's vessel in the seller's domain and the second vice versa—he acquires one of them regardless, and the seller has the upper hand to give him whichever acquisition he desires. Similarly, with two buyers and one seller, when they wrote an authorization for one another, they collect one acquisition regardless [ibid.], whereas according to the opinion of the Rambam, he has not acquired at all.

And even though the seller's vessel prevents the acquisition, nevertheless, meshikhah or another kinyan is effective with the seller's vessel; for if the seller measured and placed into his vessel and the buyer performed meshikhah upon it or lifted it in the presence of the seller, he has acquired. And even if he did not say to him, "Perform meshikhah on the vessel and acquire what is inside it," and even though meshikhah is also in a simta and the like, where without meshikhah he would not have acquired through measuring, but with meshikhah he has acquired [it appears to me that if it were not so, what is the difference for the Rambam according to what I wrote in section 11, and examine this]. And regarding the seller's vessel in a simta, if he said to him, "Go and acquire," it is possible that he acquired according to the Rambam through the acquisition of the vessel, for it is as if he is lending it to him and it is like the buyer's vessel, and it requires further study for the law. And know that a courtyard of partners without the buyer's vessel, he has not acquired [as is evident from the Shas, Bava Batra 84b, according to the conclusion, see there; and so it is implied from the poskim who did not write this rule of Rabbi Yannai without qualification, and examine this].

Neither the domain acquires, nor the vessel, nor pulling, nor lifting, nor kinyan sudar, unless they first fixed the price of the transaction at such-and-such per measure. As long as they have not fixed the price, no kinyan is effective. For how could the kinyan be effective when their minds are not resolved, as perhaps they will not agree on the price? Therefore, if the merchandise has a fixed price among the merchants, it is a kinyan even before the fixing. Similarly, if he said to him, "Behold, I am selling to you according to the price that three experts will appraise," or "according to what so-and-so will appraise," and he acquired through one of the methods of acquisition, he has acquired even if its value is not fixed, for behold, their minds are resolved upon the appraisal of the three or the individual. Specifically the fixing of the price is a hindrance, but the measuring of the transaction is not a hindrance, for however many measures there will be, so shall he pay. And thus our sages, of blessed memory, said [Bava Batra 86a]: If he fixed the price but did not measure, he has acquired.

In what case is it said that the measurement does not prevent the acquisition? When he did not mention to him the total sum of the entire purchase, but rather said to him, "each and every measure for such and such," and therefore each measure is like a matter unto itself. But if he said to him, "I am selling you a kor of grain for thirty sela," he may retract even at the final measure, and even if it is in the domain of the buyer and in his vessels, and even if he lifted or pulled the entire kor, he does not acquire it unless he measures it all. Since he revealed his intent that he only wishes to sell the kor together, the minds of both of them are not resolved until they measure the entire kor. And thus our sages, of blessed memory, said [ibid.]: "I am selling you a kor for thirty," he may retract even at the final seah. And this is the approach of most of the Rishonim, of blessed memory.

But the approach of the Rif and the Rambam, of blessed memory, is that this which the Sages said, that he may retract even at the last seah, is not in a case where there was a complete kinyan. For with a complete kinyan, and likewise with the vessels of the buyer in the domain of the buyer, the measurement does not impede even in such a case. And this law applies only in a simta; even though he measured into the vessels of the buyer, since the measurement of the entire kor was not completed, he has acquired nothing. But if the entire kor was within the vessels of the buyer, he has acquired it even though he did not measure, for we do not require measurement in this, as I wrote in section 10, and therefore the kinyan is finalized and he has acquired it. And according to the opinion in section 12 that measurement impedes in this, he has not acquired it. But the vessels of the buyer in the domain of the buyer is like meshikhah, and every seah that he measures for him into his vessels, he acquires. And when he measures into the vessels of the seller, even in the domain of the buyer, he does not acquire until he measures the entire kor, for in this the measurement impedes, as I wrote in section 11. And according to the opinion in section 12, even if he measured the entire kor for him into the vessels of the seller, he has not acquired it, and even "go and acquire" does not avail, as I wrote there. This is the wording of the Rambam [ibid.]: If the produce was in a simta or in a courtyard belonging to both of them, and even if they were in the domain of the buyer but were within the vessels of the seller, and the seller accepted upon himself to sell and the seller began to measure into the vessels of the seller—if he said to him, "I am selling you a kor for thirty sela," he may retract even at the last seah, since the produce is still in his vessels and he has not finished the entire measurement, and the vessels of the seller do not acquire for the buyer even though it is in the domain of the buyer. Thus far his words. For the Rambam holds that this law applies only where the measurement alone impedes the kinyan, except for the vessels of the buyer in a simta; even though according to him the measurement does not impede, as I wrote in section 10, nevertheless, since the primary kinyan there is the vessels, and since he revealed his intent that everything should be one kinyan, they may retract as long as the measurement into his vessels has not been completed [Sma].

If he said to him, "I am selling you a kor for thirty sela, a seah for a sela," or "a seah for a sela, a kor for thirty sela," since they fixed a price for every seah, consequently, every seah that the seller lifts and pours into the domain of the buyer, or when it was in a simta and he poured it into the vessels of the buyer, the sale of that seah is finalized. This is because the produce is neither in the domain of the seller nor in a public domain. And if the produce were not in the vessels of the seller while they were in the domain of the buyer, or in a simta in the vessels of the buyer, he would acquire it once he fixed the price even though he did not measure, as I wrote in section 10. Therefore, every seah that the seller poured from his vessels, its sale is finalized, since he also mentioned every seah individually. This is the law regarding all modes of acquisition according to most of the poskim in section 16. [I have explained according to the explanation of the Maggid Mishneh for the Rif, and the Kessef Mishneh explained there even if he measured into the vessels of the seller in the domain of the buyer, and according to what I wrote, all is well; and study this.] And some say that when he said both expressions, "a kor for thirty, a seah for a sela," or the reverse, it is a legal doubt whether we seize upon the first expression or the last expression. And that which the sages, of blessed memory, said, that "the first, first is acquired," is only because he is the possessor of his purchase in that which he measured for him, and therefore he also cannot retract. Consequently, if he has not yet given the money to the seller, the buyer can retract because he is the possessor of his money, and the burden of proof is upon the claimant. And know that in the case of one who sells many separate items as one, even if he said that the purchase price of each one is such and such, if according to the nature of the trade it is not worthwhile for the seller if they are not all sold, they all have the law of a single movable object.

Some say that all that has been explained regarding the matter of measuring applies only when the seller measured; however, if the buyer measured, it is like meshikhah, and in any place where meshikhah is effective, his measuring is effective. And there are those who disagree and hold that measuring, even though he takes them in his hands, is nevertheless not like meshikhah, because he revealed his intent that he acquires through measuring and not through meshikhah [the Gra]. And the first opinion holds that there is no revelation of intent in this that he does not wish to acquire through meshikhah, for his intention is always for meshikhah, but he also wishes to know the measurement incidentally [it appears to me, and the words of the Tosafot in Bava Batra 84b are well-settled].

Meshikhah is not effective by means of people upon whom the merchandise rests, who carry it as a burden on the shoulder [Rashi 71b]. Therefore, if the buyer brought the donkey drivers and the laborers who have the merchandise on their shoulders into his house, even if the price was set, this is not meshikhah. And even if the seller measured them while they were on the donkeys, he has not acquired them unless he unloaded them from upon them and brought the merchandise into his house, for then his house acquires for him when the price is set if they are not in the seller's vessels, even though he did not measure [Tur]. And even if the setting of the price is after the meshikhah, it does not prevent the acquisition since at the time of the setting of the price it is placed in the domain of the buyer [Sma]. And if the buyer measured them while they were on the donkeys, there is one who says that he also has not acquired, for he intended only for measuring and not for acquisition. And there are those who disagree and hold that if the buyer measured, he has acquired, as has been written that the measurement of the buyer is always effective because he certainly intended for acquisition. And even though meshikhah itself is not effective when the merchandise is on the donkeys, nevertheless, when he measured them, he perforce unloaded the merchandise; and even though the unloading was onto the donkeys, nevertheless, it is superior to meshikhah with donkeys where the merchandise was not unloaded at all. And the opinion of the Rambam there is like those who disagree [so it appears to me to explain, for otherwise the Rema contradicts himself].

And know that in all that I have written from section 10, where there are differences of opinion among the poskim and a practical legal difference, such as one who sold him a kor for thirty sela and he performed meshikhah on the entire kor but did not measure all of it—where according to the Rambam he has acquired it and according to the other poskim he has not acquired it—or in the seller's vessel in the buyer's domain after measuring—where according to the Rambam measuring is effective and according to the other poskim it is not effective even if he said "go and acquire"—and similarly the buyer's vessel in a simta, where according to the Rambam we do not require measuring and according to the other poskim we do require it, and similarly regarding measuring by the buyer—in all these cases it is a legal doubt, and wherever the money stands, it shall stand [Bach], for the burden of proof rests on the claimant. However, even in a case where the buyer can retract, either by absolute law or due to a legal doubt, and through his retraction he caused a loss to the seller, he is obligated to save him from the loss. For example, if the buyer came to take a barrel of wine from him and the seller opened the barrel for him, and when he measured half for him the buyer wants to retract and not take more, and the seller says that the remainder will sour, the buyer must take all of it or accept responsibility for the remainder. This means they shall assess how much the remainder has depreciated if he had wanted to sell it immediately due to the fear of souring, and that deficiency he must pay him. But if the seller delayed the wine with him before standing in beit din until it soured completely, he does not have to pay him the entire loss, for one who causes damage to his fellow only needs to pay him for the definite damage, and the buyer can say to him: "You should have sold it immediately" [Netivot HaMishpat]. And similarly, if Reuven bought merchandise from Shimon and the merchandise is placed in another location, and they finalized the transaction and he commanded Shimon to bring the merchandise and Shimon did so, and afterwards the buyer retracted, he must pay him his expenses; for even though he did not yet acquire it by law, nevertheless the seller relied upon him and incurred expenses, and it is worse than garmi, and so too in all matters. And whenever the transaction was acquired with a complete kinyan, neither of them can retract, even though some disputes fell out regarding the details between them, such as if the seller says there was such-and-such weight or measures and the buyer says such-and-such, and the seller did not want to give the merchandise because of this—nevertheless the transaction stands, and regarding the matter of the disputes, let the law pierce the mountain between them.

All that has been explained applies to the measure of the buyer or of the seller. However, if the measure belonged to another man who lent it to them to measure the purchase, or if it belonged to the broker and the sale took place in a simta or in a courtyard belonging to both of them: until the measure is filled, it is like that of the seller, and once the measure is filled, it is like that of the buyer. The reason is that the lender and the broker presumably intended that until the filling it should belong to the seller, since before the filling the buyer will not take it, and it is like a vessel of the seller; and after the filling it should belong to the buyer until he pours it into his own vessels. Therefore, until it is filled they may retract, and after it is filled they may not retract. And even if there are marks on the measure indicating where its half and its third are, nevertheless, before the filling it is in the domain of the seller [Tur]. And this is specifically when the lender lent it to both of them, but if he lent it to one of them, it is always in the domain of the one to whom he lent it [Taz].

The Rambam wrote [ibid.]: If the measure belonged to one of them and it had markings to know its half, its third, its quarter, and the like, once it reaches one of the markings, the first [part] is acquired first, even though the measure was not filled, for every marking among them is like a measure unto itself; for each of them is the measure and he relies on the markings within it. Thus far his words. Therefore, in any place where the measure effects acquisition, every marking is like a measure. And some say that this is only regarding a measure belonging to the buyer, but regarding a measure belonging to the seller where the seller measures with it, he has not acquired it until he pours it out, for presumably it was not the intent of the seller that the buyer should acquire it until it is filled and he pours it out. And if the buyer measures with it, his law has already been explained, that when he lifted it at the time of measuring, it is an acquisition. And if he sold him a half-measure, immediately when it reaches its half, it is as if it were filled [Sma]. And some say that this is also the intent of the Rambam, for if not so, a measure belonging to a seller would be superior to a measure belonging to a middleman, for with that of a middleman a marking is not effective, yet with that of a seller it is effective [Taz]. However, the wording of the Rambam does not imply this. And it appears that the reason of the Rambam, of blessed memory, is that in most sales it is to the benefit of the seller to sell his merchandise, and therefore he also resolves in his mind that when it reaches the marking it shall be like a complete measure; but the middleman and the lender do not consider the benefit of the matter.

One who takes a vessel from the house of a craftsman in order to examine it, if its price was fixed and known in the city and it was lost to an unavoidable accident in his hand, he is liable. Since its price is fixed, from the moment he lifted it, it entered his domain, and the seller cannot retract, provided that he lifted it or performed some other kinyan in order to acquire it if it should please him. However, the buyer can say, "It did not please me," and he can retract. Nevertheless, he is liable for unavoidable accidents before he revealed his intent that he does not desire it [Sma]. And some say that even if he did not lift it in order to acquire it, it is nevertheless in the domain of the buyer to be liable for unavoidable accidents as long as he has not revealed his intent that he does not desire it, since it is an item that is easily sold [ibid.]. But an object that the seller is weary of and pursues its sale remains in his domain until the fixing of the price and the buyer lifts it after the fixing, or performs another kinyan. And if he revealed his intent that he does not desire it, and it was stolen or lost before he returned it, some say he is liable as a shomer sachar, for this is his benefit—that the choice is in his hand either to take it or to return it, like one who takes a vessel from the house of a craftsman in siman 186. And some say he is only like a shomer chinam, for it is not similar to there, where he had a benefit in that he wanted to send it as a gift, as is written there. And some say he is liable even as a sho'el, for its guarding is upon him until he returns it [see Sma].

Whether one who pulls, or one who lifts, or one who performs a chazakah in a domain acquisition, or one who told another to lift or to pull on his behalf or to perform a chazakah on his behalf and this other person did so according to his agency, behold, this person has acquired it for him, for a person's agent is like himself. And there is one who wished to say that he can even make the seller an agent to acquire on his behalf, but his words were rejected, for by the hand of the seller himself it is impossible to depart from his domain to the domain of the buyer; and so too regarding the other methods of acquisition. And all the laws of acquisition by money that were explained in siman 190 regarding land, acquire regarding movable property for the matter of "He who punished," but for a gentile, or a deaf-mute, an insane person, or a minor, he cannot command them to acquire on his behalf, for they are not subject to agency. And it has already been explained in siman 189 that in all acquisitions the buyer must intend to acquire and the transferor must intend to transfer. And there is one who says that where there is the mind of another, the intention of the buyer is not required, only the intention of the transferor; however, this is only regarding a gift, which is a complete benefit for him, and not regarding a sale, for perhaps he does not wish to buy, unlike the one who disagrees on this [see Netivot HaMishpat what he wrote in the name of the Rashba, and his second answer is the primary one, for so it is proven from the poskekim, and delve into this].