Siman 203

The law of chalifin has already been explained in siman 195, and this kinyan was practiced in Israel even before the building of the Temple, as it is written in Ruth: "Now this was the custom in former times in Israel... to confirm all things, a man plucked off," etc. Because this kinyan applies both to land and to movable property, and whether the object of sale is before us or is not before us, and this kinyan involves no exertion at all, therefore they practiced it. Even until now, most kinyanim are performed through kinyan sudar, and it effects the acquisition of everything. Although the kinyan must be performed specifically with a vessel, nevertheless it effects the acquisition of everything: land, movable property, animals, and produce, except for currency, which is not acquired through chalifin, and likewise documents, as mentioned in siman 66, because kinyan sudar only takes effect upon something whose essence is monetary, whereas documents are merely letters and their essence is not monetary. Also, the primary importance of currency is the form, and it is like letters whose essence is not monetary [Sma]. Likewise, a thing that has no substance, a kinyan is not effective for it; for example, if they performed a kinyan from him that he should go with him to such-and-such a place, and the act of going has no substance; or if they accepted through kinyan sudar to divide a courtyard between them, and the division has no substance, and the kinyan has nothing upon which to take effect; and all similar cases, as mentioned in siman 212. Likewise, one who effects the acquisition of something that is not defined, or something that has not yet come into the world, which will be explained in siman 209. Likewise, one from whom they performed a kinyan sudar that he should forgive his fellow's debt, or that he should make for him a document of forgiveness—this is a kinyan devarim, as he is not transferring anything to him but rather removing himself from what is due to him from so-and-so. But if they performed a kinyan sudar from him to return to him his rights that he has against him, it is not a kinyan devarim, and the kinyan takes effect upon the rights he has from so-and-so, whether objects or documents. And even though documents are not transferred through chalifin, this is because his primary reliance is on what is written in the document to collect what is written there, and not on the paper, and the writing is merely letters. But to return his documents to him, behold, his primary intention is to return the papers to him and burn them, and automatically what is written there is nullified, and the paper certainly has substance like all movable property [it appears to me]. And in siman 245 it will be explained regarding one who says "I will give this thing to so-and-so" and accepted a kinyan sudar upon this, that some say this is only a kinyan devarim, as it is only a promise for a future time. Even according to this opinion, nevertheless, in the returning of rights he has acquired, for since the recipient has a connection to the documents even until now, this is not a promise but a nullification from now [and what the Taz and the Gra wrote on the Rema is well-settled]. And a matter that involves only a benefit of pleasure, such as an Israelite who must set aside terumah and performed a kinyan sudar to give them to so-and-so the Kohen—since this is not the property of the Israelite, but it is only in his power to give to any Kohen he wishes—it is not monetary to be transferred through chalifin or through agav karka. Some say that regarding chalifin and agav karka it is considered property [Shach]. And in siman 350 we explained further on this with the help of Heaven. And we have already explained in siman 66 that government notes that circulate as currency have the law of currency; see there. Likewise, a person can obligate his assets through kinyan sudar, for the kinyan takes effect upon his assets.

There are four types of chalifin: The first is the chalifin practiced in kinyan sudar, where they make a transaction for merchandise and he transfers it to him via kinyan sudar, and with this the kinyan is finalized, and the money he shall pay him afterwards at the time they designated; and this is what is written, "a man drew off his shoe," etc. The second is where he does not fix a price for him at all for the merchandise, but rather he exchanges this object for that object, and they are not particular to evaluate the equality of the value with an exact assessment, but rather each one knows the value of his object, and even though the transaction is not equal in value, nevertheless, once this one has performed meshikhah on the object, the object of the other is acquired to the second wherever it is [and this is what they said in Bava Metzia 47a: "Are we dealing with chalifin among fools?" and this is the intention of Rabbeinu Chananel, of blessed memory, whom the Baal HaMaor cited, and they criticized him in vain; and examine this carefully]. The third is where they are particular to know the value of the object and are exacting that it be equal in value, and even though it is literally like the law of money, nevertheless, since they perform chalifin, once this one has performed meshikhah, this one has acquired wherever it is [and this is in Bava Metzia ibid.: "How much is your cow worth... how much is your donkey worth"]. And these types of chalifin were also mentioned in the verse in Ruth, as it is written there, "and concerning the exchange," meaning that he exchanges this for that, whether he is particular about its value or he is not particular [and this is what Rashi explained there, that the chalifin are from the verse; and see there in Tosafot, and examine this carefully]. And the difference between the law of money and the third type of chalifin is that chalifin is when the two things are in existence and they exchange this for that, and the law of money is when he fixes money or objects for this transaction and it is not in existence as an exchange for the transaction [the Rif ibid., and examine this carefully]. And the fourth is when one has a type of merchandise placed in a warehouse, and similarly for the second, and the type of merchandise is known but its quantity and its value are not known to both of them, and they exchange this for that; and once the one has acquired the merchandise of the other with a complete kinyan, the merchandise of this one is acquired to the second wherever it is [Yerushalmi, chapter 4 of Bava Metzia].

This is what the Tur and the Shulchan Aruch wrote: All movable property may be acquired one for the other through chalifin. It goes without saying if the transferor is not particular to know the value of the object he is taking in chalifin, similar to how one acquires with a sudar [this is the second type that we wrote, and regarding what the Sma wrote in subsection 2, see the Taz and examine it closely], for this is a complete kinyan that is effective for all things, whether land, movable property, or livestock, etc. Rather, even if he is particular to know the value of the object he is taking, such that it now resembles payment, it is nevertheless acquired. How so? If one had a cow and the other a donkey, and they appraised them for how much each of them is worth and agreed to exchange them for one another, once the owner of the cow pulled the donkey, his cow is acquired by the owner of the donkey wherever it is, and neither of them can retract. Thus far their words. And if the cow died, or increased in price, or decreased in price after this one pulled the donkey, it is all in the domain of the owner of the donkey. And some say further that with chalifin where they exchange one for the other, they may acquire even with produce, and they can exchange produce for produce in such a case, even though one does not acquire with produce in kinyan sudar. And the reason is that since this is like payment, except that it is done in the manner of chalifin, one acquires with them as well. And there are those who disagree on this, for ultimately the name "chalifin" applies to this. However, for the law, the primary view is like the first opinion [the Gra]. And it appears that this is only when they are particular about the value, for it is then exactly like payment [and so it appears from Tosafot there, s.v. geulah]. However, from the wording of the Rambam, of blessed memory, in the fifth chapter of Mechirah, who wrote "even though they are particular about its value," it implies that even when they are not particular about its value, he has acquired. And from the wording of our teacher, the Rema, in section 1, it implies as I have written. And in chalifin such as this, even if he did not pull the one piece of merchandise but rather acquired it through one of the other kinyanim, such as kinyan sudar or agav karka, the other merchandise is acquired by the second party [Netivot HaMishpat].

If one exchanged a donkey for a cow and a lamb, and he pulled the cow but did not pull the lamb, he has not acquired, because there is no complete meshikhah here. And there are some of our teachers who say that the reason he did not acquire the cow is because the donkey that is against them is not suitable to be divided; but if he said, "a cow and a lamb for a kor of wheat," and he pulled the cow alone, this one acquired the cow and that one acquired the wheat corresponding to the value of the cow [Rashba, Ran, and Nimukei Yosef ibid.]. For as has been explained in siman 192, regarding one who sold him ten fields in ten provinces and he performed chazakah in one of them, he acquires all of them when he gave the payment for all of them; and when he gave the payment for part of them, he acquires corresponding to the payment. And here too it is similar, for this opinion holds that the kinyan of meshikhah is not delayed until he pulls all the merchandise, but rather whatever he pulled, he acquired. For according to the essential law, even a kinyan on a part is like a kinyan on the whole, as with a kinyan of money in siman 190, and if he truly intended for a kinyan, he would acquire everything through the meshikhah of the part; it is only that here, regarding the cow and the lamb, we are dealing with a case where he pulled it for payment and not for the sake of kinyan, and therefore what he pulled he acquired, and regarding the rest their minds did not rely, as with the ten fields [Lechem Mishneh, chapter 5 of Mechirah]. And even though in a case where he sold him a kor for thirty he can retract even on the last seah, as written in siman 200, section 16, this is because he was particular not to acquire in any other manner, as written there. And there are some of our teachers who disagree with all of this and hold that as long as he has not pulled the cow and the lamb, this is not a meshikhah at all [Tur in the name of the Rosh]. And it appears so from the Rambam there, who holds that regarding a kinyan of meshikhah, until he pulls all the merchandise, the name "meshikhah" does not apply to it. And it is not similar to a kinyan of money, for the partial money is suitable against each and every part of the acquisition; nor to a kinyan of chazakah, where he acquires the entire field through a partial act because the block of the earth is one. But with separate movables, how would the meshikhah of this part benefit the part that was not pulled? [It appears to me]. And it is also not similar to ten fields in ten provinces, for there the kinyan is completed through chazakah, and therefore he acquired corresponding to the money, and the reason he did not acquire all of them is because his mind did not rely. And that which was explained there, that measurement does not hinder, that is when he did not specify the sum; but when he specified "I am selling you such and such," as long as he has not pulled all of them, it is not a kinyan at all.

According to what was written for the first opinion, if one sold many movable items or livestock, since he performed meshikhah for the sake of acquisition on one of them, he acquires them all. And one should not raise a difficulty that the sages only stated this law regarding lands—where if he sold him ten fields and he performed chazakah in one, he acquires them all—and not regarding movable items. For it can be said that regarding lands, it is effective even when they are scattered because of the reason that "the block of the earth is one," and regarding movable items in such a case, it is obvious that it is not effective. However, when all the movable items are in one domain, one acquisition is effective for all of them. And that which was explained in siman 197, section 5, that the meshikhah of one animal does not count for another, that is when they are standing in separate locations [as appears to be the case according to the words of the Lechem Mishneh in the explanation of the Rashba].

But there are those who disagree in this and hold that even according to the first opinion, the meshikhah of one does not effect an acquisition for the other even when he intended for the sake of kinyan. Rather, the first opinion holds that the absence of meshikhah for the other does not hinder the one he pulled; and since the seller and the buyer know that he has acquired the one he pulled, they cannot retract regarding what he pulled, since they did not reveal their intent not to acquire this without that. For then, even if he sold it to him in one sale, he has acquired the one he pulled, unless there is a proven assessment that the intention was specifically for all of them together, for then he does not acquire this without that. And so too, if the buyer sent a messenger to buy him a kor of grain and he pulled a half-kor from the seller, and the seller retracted regarding the remainder, the buyer can say, "I only desire a complete kor," but the seller cannot retract since it was before him. And so too, when the seller sent a messenger to sell a kor of his merchandise and the buyer pulled a half-kor and the seller retracted, he can retract but not the buyer. And so too, if he sold two things and there was a price fixed for each one individually, and one of the things was not in his possession and the kinyan did not take effect except upon the one, even if the buyer did not know of this, he cannot say, "I want a complete purchase." And if he included the two things in one sum and they are two types, such as land and trees, as will be explained in siman 216, according to the opinion of the Rambam, if he does not complete the trees for him, he can say, "I want a complete purchase," when the buyer did not know that he did not have trees. And according to the opinion of the Rashbam, one does not hinder the other since they are two types, and there it will be explained with the help of Heaven. But regarding one type, when they were included in one sale and the seller does not have the entire sale and the buyer did not know of this, certainly the buyer can say, "I want a complete purchase." And if the seller wants to complete for him what he sold, even though it is not currently in his possession, nevertheless, since he wants to complete it for him, the buyer cannot nullify the kinyan of the part that the seller has. And all this is in a place where there is no assessment and there was no revelation of intent that the intention in the sale was specifically to sell or to buy; but an assessment or revelation of intent in any manner, the kinyan is nothing until he completes the kinyan in its entirety, and as long as the kinyan is not completed, each of them can retract, as in the case of a kor for thirty sela that has been explained. However, even in this, if he received partial payment corresponding to what the buyer pulled, the opinion of the Rashba is that the seller cannot retract and cannot say, "I need the money for the whole of it." And if he sold him land and part of it was found to be stolen, his opinion, of blessed memory, is that the purchase is valid for the part that is not stolen. And the opinion of the Ran, of blessed memory, is that the buyer can retract from the entire field. And one of the great Acharonim decided according to the opinion of the Ran, of blessed memory. However, if he made use of the purchase, he cannot retract, for when he made use of it and it was found to be stolen, he does not return to the seller for the reason of nullification of the purchase, but rather because of the responsibility that is upon the seller, and automatically the purchase is valid for the part. And regarding movable property, this law is not applicable, for when he made use of them, there is no law of responsibility for movable property unless they stipulated so at the time of the sale; but when he has not yet made use of them, even though he performed a kinyan on everything and some were found to be stolen, the matter is revealed that the kinyan was in error and he retracts regarding everything [as appears to me in all this, and so wrote the Netivot HaMishpat in siman 192, and so appears primary in the first opinion of section 4, and not like what was written in section 5; and that which the Rashba compares it to the sale of ten fields, the intention is regarding the reliance of the mind, and delve into this].

One who exchanges land for land, or movable property for movable property, or movable property for land, or land for movable property—once this one has acquired, this one becomes obligated in the exchange. There is one who wishes to say that when land is the acquisition, it is only effective in an exchange of equal value, for that is like money; but in an exchange of unequal value, which is like kinyan sudar, it is not effective because land is not a vessel [Ktzot HaChoshen]. However, it does not appear so from all the poskim, and certainly you have no vessel greater than land, with which one performs everything.

If one exchanged together a thing that is acquired through chalifin with a thing that is not acquired, for example, if one exchanged movable property and coins, or land and coins, and the buyer said to him, "Take my sudar and transfer them to me," some say that since coins are not acquired, it is also nullified regarding the second thing. And even though in siman 209 it was explained regarding "acquire you and the animal" that he acquires half even though an animal is not subject to acquisition, nevertheless, in this case where he included the coins and the second thing as one, it is entirely nullified according to the Rambam in Even HaEzer siman 41 regarding kiddushin [the Gra, and it requires further study from Gittin 8b; and it can be resolved]. According to this, if he said, "Transfer to me the coins and the movable property," he acquires the movable property since they were stated in two utterances [and the difficulty of the Sma in subsection 19 is resolved]. And some say that in any case the acquisition is valid even for the coins, for since it is an acquisition regarding the movable property, it is also an acquisition regarding the coins; and this is superior to "acquire you and the animal," for an animal is not subject to acquisition at all, but coins are acquired through other forms of acquisition [Sma]. According to this, if he transferred a thing of substance with a thing of no substance, or a thing that has come into the world with a thing that has not come into the world, he does not acquire everything, and its law is like "acquire you and the animal" [ibid.]. And some say that in every case, whether he included in the acquisition coins, or a thing of no substance, or a thing that has not come into the world, the law is thus: for the effective thing the acquisition is beneficial, and for the non-effective thing it is not beneficial and he did not acquire it. And the law of this section does not pertain to section 4 regarding the cow and the lamb, for there the acquisition is fit to take effect on both of them, but in this case the acquisition is not fit at all for the second thing.

Two who acquired from one another to exchange all that they have, some say that a kinyan is not effective in this, for this is like one who transfers an object that is not defined, which will be explained in siman 209, for it is like an asmakhta. Therefore, if everything they have was known to both of them in detail, the exchange is established; and even though the quantity is hidden from them, nevertheless, since the quality is known to them—for example, that they have houses or fields or produce—the exchange is established, for what they exchanged is defined, as is written there. And if they have things known to them and things not known to them, it depends on the opinions in the previous section. And if they acquired in a beit din chashuv and "from now," which is effective for an asmakhta as is written in siman 207, it is effective in this as well and the exchange is established, for the entire essence of this law is because of asmakhta. Our teacher, the Rema, wrote that some say a kinyan is effective in this, but each shall remain with his own and his fellow shall give him the surplus in his property, for his primary intention was to profit and not to actually exchange. Thus far his words. And there are those who disagree with this and hold that there is no opinion that would maintain that what is effective for an asmakhta would be effective without a kinyan in a beit din chashuv. And it is possible that our teacher, the Rema, holds that according to the rules of asmakhta that will be explained there, this is not an asmakhta [and so it appears from the Gra, see there].

Our teacher, the Rema, wrote in section 2 that there are those who say that if Reuven exchanged with Shimon and Levi and it was voided regarding one, it is also voided against the second. Thus far his words. For it is like one who exchanges a donkey for a cow and a lamb, as was explained in section 4, that if he did not pull the lamb, he did not acquire [the Gra]. And so too in this case, since it was voided regarding the one, it is voided also regarding the second. And even according to the latter opinion in section 8, that the kinyan remains valid for the matter in which the kinyan is effective, nevertheless here it is voided regarding both of them; for there, from the beginning, the kinyan was not fit to take effect upon the second matter, but in this case where the kinyan is fit to take effect and was voided, it is voided in its entirety [it appears to me]. And there is one who disagrees in this and holds that even when it was voided regarding the one, it was not voided regarding the second. And this is only regarding the matter of a fine, such as if Reuven said that if he does not fulfill his word he will give such and such a fine to tzedakah, and one of them forgave him, the fine is voided also against the second [Netivot HaMishpat].

Bars of gold and of silver and of other types of metals are like other movable property and are acquired through kinyan sudar and acquire one another through an exchange of equal value, and their law is like produce since the name of a vessel is not upon them. It has already been explained in section 3 that produce, even though they do not acquire through chalifin, are acquired through chalifin, and in an exchange of equal value they acquire one another. This is also clear from the wording of the Rambam in chapter 6 of Mechirah [and so it appears from the Maggid Mishneh, and so the Lechem Mishneh wrote previously, see there]. However, coins of silver or of gold or of copper are all considered money relative to other movable property, and one who gives one of them for the price of movable property has not acquired, for money does not acquire, as was written in siman 198. And through kinyan sudar, none of them are acquired through a kinyan nor do they effect a kinyan, for a coin does not acquire and is not acquired through chalifin. Therefore, one who designates money and transfers them to another in exchange for movable property through chalifin, since this one did not acquire the money, the other did not acquire the movable property even though he performed meshikhah, for he designated the money for him by way of chalifin, such as where the money was lying in some place and he said to him, "Acquire this money that is lying in such-and-such a place." But by way of payment, where he did not designate the money but rather said, "Pull the movable property and I will be indebted to you for such-and-such an amount of money," once he has pulled the object, he is immediately indebted for its price, for the name of chalifin is not upon this, but rather the name of money.

That which has been explained, that money does not acquire and is not acquired through halifin, in what case does this apply? Regarding other movable property, such as one who sold movable property for one of these types of coins, for they all have the status of "coin" upon them. But one who sells a coin for a coin, such as one who sold gold dinars for silver coins, the gold is like produce in relation to the silver, because silver is more "sharp" to circulate in expenditure than gold, and gold, which is not as "sharp" as silver, is considered like produce in relation to the "sharp" silver. This law is like one who sells produce for silver: when the owner of the silver pulls the gold, he has acquired it and is obligated to give him the silver. But the owner of the gold who pulled the silver has not acquired it, except regarding "He who punished." And so too, copper coins have the law of produce in relation to silver coins, for silver is sharper than copper. And regarding gold and copper, some say that copper is the coin and gold is the produce, because they circulate more in expenditure than those of gold; and some say the opposite, that gold is the coin and copper is the produce, for it is true that those of copper are sharper in expenditure, nevertheless, the importance of their sharpness is nullified in relation to the importance of the value of gold, and it is not comparable to silver. And all of them have the law of a coin in relation to other movable property, and so too one against the other, such as one who sold a gold dinar for a gold dinar, or a silver dinar for a silver dinar, or a copper coin for a copper coin. And that which we said, that by pulling the gold he acquires the silver, this is specifically when he designated the silver for him as payment, such as when he did not designate these specific coins for him to be acquired through the law of kinyan, but rather the acquisition was by way of a monetary obligation; for then, once he pulled the gold, he became obligated to him for the sum of silver according to what he agreed with him. And also, if he agreed that he would give him new ones, he must give new ones, and if he agreed to give him old ones, he must give him old ones, and all is by way of an obligation of payment. Our teacher, the Rema, wrote that our coins, in which silver and copper are mixed together, are a "coin" in relation to silver. Thus far his words. And he means in relation to a pure silver coin, which does not circulate as much in expenditure. And these matters depend on the custom of the country. And government notes have the law of a coin, as I wrote in siman 66.

Bad coins that the government or the province invalidated, or dinars that do not circulate in that province and are not used in trade until they are changed into another currency, are like produce and like vessels for all matters. They are acquired through kinyan sudar, and through their pulling, one becomes obligated to give the coins that were agreed upon. If one took coins against them, they are not acquired. And some say that even bad coins that were not completely invalidated, but only that they do not circulate openly in expenditure, are called movable property. Our teacher, the Rema, ruled accordingly [see the Gra, subsection 34]:

According to what has been written, that currency is not acquired through chalifin, there is no way at all to acquire currency as a gift when the currency is not in the possession of the giver. For in the manner of a sale, there is a way to acquire it, in that the buyer pulls the movable objects and becomes obligated to the seller for the money. But regarding a gift, when the money is not in the possession of the giver and it is impossible for the recipient to pull them, there is no way to acquire them except agav karka, and he should transfer to him any amount of land and agav it such and such money, or to lease him any amount of land or lend it to him and agav it the money. And once the recipient has acquired the land through one of the methods of acquisition, he has acquired the money of the gift. And specifically if the money exists, even if it is not in his possession and is deposited in another place and the bailee has not denied it; for if his fellow denies it to him, what can he transfer to him? And even though we write a power of attorney even where he denies it, as has been written in siman 123, this is because of the enactment, as has been written there; nevertheless, to transfer it to him completely is not within his power. And Reuven who had a debt against Shimon and transferred land to Levi and agav it the debt, he has not acquired the debt, for a loan is given for expenditure, and only through ma'amad sheloshtan can he transfer it to him. And in siman 126 the details of the laws were explained regarding this, see there. And likewise, he can transfer it through the sale of the shtar chov as has been written in siman 66. And there is one who says that a debt can be transferred through kinyan agav, and it requires further study [Shach]. And some say further that there is a way to acquire currency through hoda'ah, that he should admit that so-and-so has such and such money with him even though it is known that it is not so. And some say that hoda'ah is only effective for a shechiv mera and not for a healthy person [see Shach siman 60, subsection 32].

If he transferred to him land and movable property with money, even though movable property is not acquired with money, nevertheless, since according to the Torah money acquires and he included them with the land, since the kinyan takes effect on the land, it also takes effect on the movable property [see Beit Shmuel siman 31, subsection 17]. This is not similar to "acquire you and the animal" in siman 209 or the law in section 8 because of the reason we have written. There is one who is uncertain regarding this [Mishneh LaMelech chapter 6 of Sale]. Regarding the law, it appears like the first opinion, and specifically when the acquisition was with two perutot, not less; but with less than this, it is a legal uncertainty even for the acquisition of the land, as was written in Even HaEzer there regarding one who betrothed two women with a peruta, see there [so it appears to me]. Similarly, if he sold him movable property and agreed with him to also give him something that has not yet come into the world, and the buyer performed a meshikah on the movable property, he is obligated to give him after a time also the thing that has not yet come into the world that he obligated himself for, as an obligation takes effect even on something that has not yet come into the world [Netivot HaMishpat]. If he promised a worker an object as his wages and said to him, "this object shall be yours for the wage of your labor," since he does not have a kinyan on the body of the worker, his labor is considered only like the giving of money for the object; therefore, if the employer retracts, he receives a "He who punished" and he must pay him money. But if he said to him, "I will give you this object as your wage," it is not a kinyan at all on the object, for a kinyan of "I will give" is not a kinyan, as was written in siman 245, and he may settle with him with money [ibid.]. Similarly, regarding what has been explained that money is not acquired through chalupin when it is present and he designated it, if he spoke in the language of obligation—that he obligates himself to pay with this money, or if he said to him, "you shall have no payment except from this money"—he acquires it with the meshikah of the movable property; since he obligated himself to pay, this has the law of money and not the law of chalupin [ibid.].

One should not raise a difficulty against all that has been explained in this siman, that when one of them performs meshikhah, the second acquires the other object through halipin, and why did they not fear that he might say to him "your object was burned" as they feared regarding an acquisition with money? For it can be said that since in the majority of halipin, which are performed via kinyan sudar, this fear does not exist, they did not fear it in any type of halipin [ibid. subsection 3]. Furthermore, regarding what was explained in the previous section concerning one who transfers to him land and movable property together, where he acquires with money, one need not fear this concern; since regarding the acquisition of movable property itself they feared this, and that is the vast majority, therefore they did not fear such a minority case in the transfer of land and movable property. And so too, in everything you find where they occasionally did not fear this, it is for this reason [ibid. siman 204].