Siman 204

One who gave money but did not perform meshikha on the movable property, even though the movable property was not acquired by him as written in siman 198, nevertheless, whoever retracts—whether the buyer or the seller—has not acted as an Israelite and is obligated to accept "Mi She-Para." And even if he only gave a portion of the money and wishes to retract regarding that for which he did not receive money, he is nevertheless obligated to accept "Mi She-Para." For just as with land, one acquires all of it with partial payment when he is not "coming and going for the money" as written in siman 190, so too with movable property, one acquires the movable property with partial payment regarding the obligation of "Mi She-Para." And there are some of the great authorities who wrote that even with land, in a place where they write a deed such that he does not acquire with money alone as written there, one who retracts accepts "Mi She-Para." And there are those who disagree on this and hold that "Mi She-Para" applies only to movable property, because by Torah law it is a complete kinyan and they uprooted this kinyan, therefore they instituted "Mi She-Para"; but regarding land, they did not institute it [see the Beit Yosef, and in Tosafot Ketubot 93a, starting with the word "Ad," it is explained that there is "Mi She-Para" regarding land].

How does one receive "mi she-para"? They curse him in beit din and say: "He who took retribution from the people of the generation of the Flood, and from the people of the generation of the Dispersion, and from the people of Sodom and Gomorrah, and from the Egyptians who drowned in the sea, He shall take retribution from one who does not stand by his word." And there are those who say that they say it to him in the second person: "He shall take retribution from you if you do not stand by your word." And there are those who say that the shatz says this to him publicly in the synagogue, but the custom is not so; nor do they curse in the second person, but rather in the house of the beit din they curse him, whether many are there or not [Bach]. And why did they choose this curse? Because in these instances the providence of Hashem, may He be blessed, over evil deeds was seen and publicized [Sma]. And furthermore, because his mouth spoke vanity like these whose "mouth spoke etc." [Maharsha]. And furthermore, because the reward for a mitzvah and the punishment for a transgression do not exist in this world, and many people do not concern themselves with the punishments of the World to Come and their entire focus is only on the vanities of this world; therefore, they say to him: "He who took retribution from these in this world, so shall He take retribution from you in this world," and from this perhaps he will repent and fulfill his word [it appears to me].

One who defrauds his fellow in the amount of a sixth, where the law is that he has acquired it and must return the ona'ah as written in siman 227, and the buyer gave money but has not yet performed meshikhah on the object—if the defrauder does not wish to return the ona'ah and says, "Since there was no meshikhah, it is my will to retract," he is obligated to accept the mi she-parah. And likewise, if the defrauder wishes to return the ona'ah and the defrauded party retracts, he is obligated to accept the mi she-parah [Shach]. And all the more so regarding less than a sixth, which is considered waiving, the one who retracts is obligated to accept the mi she-parah. And likewise, if the buyer did not give cash but only a promissory note upon himself and the seller agreed to this, and afterwards one of them retracted, he is obligated to accept the mi she-parah [Netivot HaMishpat]. And likewise, if the seller said, "Give a maneh to so-and-so and my movables shall be acquired by you," and he gave the maneh to that person, and afterwards one of them retracted, he is obligated to accept the mi she-parah [ibid.], for this is also like a kinyan of money as written in siman 190. And there is one who wished to say that in such a case it is a complete kinyan for the reason that it is not relevant for him to say to him "your merchandise was burned," but it is not so, for the sages did not differentiate in their enactment, and there is in this only the mi she-parah [ibid.].

One who fixes a price according to the market rate and received money, but did not possess that species for which he fixed the price, it will be explained in siman 209 that if he fixed the price in a permitted manner, he must receive "Mi ShePara," and if in a forbidden manner, he does not. These laws were explained in Yoreh Deah siman 175. Similarly, if he sold to him with words alone and they fixed the price, and the buyer marked his mark upon the purchase so that he would have a sign that it is his, even though he did not give any of the money, the one who retracts receives "Mi ShePara," for our sages, of blessed memory, enacted that a mark should be like the giving of money [Bava Metzia 74a]. And if the custom is that through the mark they acquire a complete kinyan, it is acquired entirely and neither of them can retract. This is when he marked it in the presence of the seller or if he said to him, "mark your purchase," as I wrote in siman 201; see there.

One who had a debt with his fellow and said to him, "Sell me these movable goods for the debt that I have with you," and they agreed between them, some say that this is like the giving of money, and anyone who retracts receives a Mi ShePara. And there are those who disagree, for a loan is given for expenditure and is not a kinyan at all, and he only acquires through the benefit of the forgiveness of a loan, even if he did not forgive him entirely but only extended the time of repayment for him, for in such a case even regarding kiddushin it is considered money, as is written in Even HaEzer siman 28. And if the time of repayment has not yet arrived, even though he extended the time of repayment for longer than the time they established at the time of the loan, nevertheless it is not called benefit [Sma], for the benefit is not now but rather after a time. And with the benefit of the forgiveness of a loan or with the extension of time, when he says to him, "Let your object be acquired by me through this benefit," it is like money and the one who retracts receives a Mi ShePara. And regarding a debt that comes by way of a sale, it was explained in siman 199 section 3 that according to everyone it is effective, see there. And there are those who disagree regarding the extension of time because it is like ribbit, and in a prohibited transaction there is no Mi ShePara, as is written in siman 208 [Ktzot HaChoshen].

Reuven who owed Shimon a maneh, and Shimon said to Reuven, "I will sell you this movable object for a maneh," and Reuven gave the maneh—Shimon is able to say, "This maneh I am collecting for my debt, and the object I will not give to you," and he is not subject to "He who punished." And if Reuven said to him, "Here is another maneh for you, and give me the object," he must give it or accept "He who punished," as was written in siman 190 regarding land, see there. And similarly, one who purchases land or movable objects from his fellow and they settled on the price, and he placed a pledge for the money, he has not acquired it, and the one who retracts is not subject to "He who punished," for "there is no maneh here, there is no pledge here," as was written there. And anywhere that he is able to retract, even if he denies the root of the matter, he does not need to swear regarding this, since even if he were to admit, he could retract [Shach], and as was written in siman 87.

If one gave the money for the purchase and the purchase was lost through an accident before the buyer took it, and he said to him, "Give me my purchase or return my money to me," even though there are witnesses to the matter that the purchase was lost through an accident and the seller was not negligent in rescuing it and it was not within his power to rescue it, nevertheless he returns the money and there is no "mi sheparah" here. For since he has not yet acquired it completely, the loss is upon the seller. And some say that the same applies to one who retracts because he fears that the purchase will be lost; and even though it has not yet been lost, but there is only a concern that it will be lost, he does not need to accept "mi sheparah." For this was not instituted except in a place where there is no loss, but rather he retracts because of high prices or low prices; in this the sages instituted "mi sheparah," but in a place of concern for a total loss they did not institute it. And the seller cannot say, "When it is lost I will return the money to you," for the buyer can say to him, "It is not pleasing to me to stand against you in litigation and before a judge." And some say that this is specifically when the loss could be to the entire purchase, but for a partial loss he should not retract because of a concern. But when the loss has already occurred even in part, and the loss is small, he can retract and there is no "mi sheparah" here since he has not yet acquired it completely, and not like the one who disagrees in this.

One who conducts business with words alone, even though he is able to retract and is not liable for "He who punished," nevertheless it is proper for a person to stand by his word even if he did not perform any kinyan but only mere words. Anyone who retracts, whether the buyer or the seller, the spirit of the sages is not pleased with him, and such a person is among those lacking in faithfulness. This applies specifically when the price of the object has not changed from the time he concluded with him in words until now; but if the price of the object changed, he is not among those lacking in faithfulness. It is not comparable to money, where the one who retracts must receive "He who punished" even if the price decreased or increased; this is because money is a complete kinyan according to the Torah. But mere words one does not need to fulfill in a place where he has a loss from the change in the price of the object, and this is not a lack of faithfulness, for he did not promise him at a time when the object was at such a price. And some say that even in such a case there is a concern of those lacking in faithfulness, for since for a man of faith words are a conclusion of the matter, what does the change in the price of the object matter to him? Our teacher, the Rema, decided according to this opinion, and the later authorities were in doubt about this. From the Yerushalmi it is implied like the first opinion [the Gra]. And it appears that according to the law there is certainly no concern of those lacking in faithfulness in this, but only as a measure of piety [and all is well, and examine it closely].

And so too, one who says to his fellow that he will give him a gift and did not give it, he is among those who lack faithfulness. In what case does this apply? Regarding a small gift, for the mind of the recipient relied upon it at the time he promised him; but regarding a large gift, there is no lack of faithfulness in this, for certainly the recipient did not rely upon his word until he performs some kinyan. And if the recipient is a poor person and he promised it to him as tzedakah, even regarding a large gift he cannot retract, as will be explained similarly in siman 243; and see Yoreh Deah siman 255 [Be'er HaGolah]. And so too, if many people said to an individual to give him a gift, there is one who says that they are called those who lack faithfulness when they retract, even if it is a large gift and even if he is not a poor person, for regarding many people it is called a lack of faithfulness even regarding a large matter, because the recipient relied upon their words that they would certainly fulfill them, and furthermore, for each individual it does not amount to a large gift [Sma]. And there is one from whose words it is implied that they cannot retract at all, for regarding many people, words are like a complete kinyan [the Gra, subsection 11], and it requires further study for the halakhah.