Siman 211

We have already explained in siman 209, section 15, that an object that is not in a person's possession is like an object that has not yet come into the world; therefore, both of them can retract if he sold him an object that is not in his possession. How so? If he said to his fellow, "What I shall inherit from my father is sold to you," even if his father was moribund, it is nothing [Rashi, Bava Metzia 16a], for for the time being the property is not in his possession. And likewise, when he said, "What my net brings up today from the river is sold or given to you," or if he said, "This field that I am purchasing, when I purchase it, let it be acquired by you," he has said nothing. And likewise regarding anything similar to this. Nevertheless, one who sells merchandise to his fellow for such-and-such a price, if only the price is fixed at this value, even though the merchandise is not in his possession, since it is common to purchase it, it is as if it were in his possession. And this is the way of the merchants, as I wrote there in section 16. And even if he did not receive from him all of the money, it is the way of the merchants to uphold the transaction if only he sold it to him with the kinyan customary among the merchants. And there is no concern of ribbit in this when he did not give him all of the money, since the buyer can purchase thus in many places just as from this one who sells to him [it appears to me].

There are those who say that this which has been explained—that if one says "what I shall inherit from my father is sold to you" he has said nothing—is specifically in a general case. However, if he specified and said "this field which I shall inherit from my father is sold to you," he has acquired it. Since he clarified his purchase and the inheritance comes automatically, we do not consider it to such an extent as a thing that has not yet come into the world. And even though regarding "this field, when I purchase it, it shall be acquired by you" he has not acquired it, this is because it lacks the act of his purchasing, but an inheritance falls automatically [Shach]. And even according to this opinion, it is only when he is a sole heir; but when there are other heirs, it is not effective even if this field fell to his portion, for brothers who have divided are considered like purchasers [Netivot HaMishpat], and it is like "this field when I purchase it." And even with a sole heir and regarding "this field," if the seller comes to retract before his father died, he can retract even if he said to him "from now." And there is one who holds that he cannot retract according to this opinion, but it is not clear; for granted that according to this opinion this is not exactly like a thing that has not yet come into the world, nevertheless, it is impossible to say that the sale takes effect from now, for behold, it is not in his possession at all. And there is no difference in all this between land and movable property [ibid.].

One whose testator was moribund and leaning toward death, and he wished to sell a small amount of his property in order to spend the money on burial needs, and the heir is poor, and if he waits until he dies and sells afterward the deceased will be delayed and disgraced—the sages enacted that if he sold and said, "What I shall inherit from my father today is sold to you," his sale is valid. If the heir is not poor, his sale is not effective, for they only enacted this because of the disgrace of the deceased. And we are not exacting if he sold a little more than the burial needs, but when he sold much more, the sale is not valid, unless he cannot find someone who will buy a small amount, for then he may sell according to the measure he finds to sell. And so too the sages enacted regarding a poor hunter who has nothing to eat and said to his fellow, "What my net brings up today from the river is sold to you," his sale is valid for the sake of his livelihood, so that he may obtain money for his sustenance. And some say that he may only sell for the sake of his livelihood for that day [Tur]. But according to the Rif and the Rambam, he may sell even for the sake of his livelihood for many days. And from these enactments one may learn that in any such case, the fact that it has not yet come into the world and is not in his possession shall not hinder the sale [it appears to me]. And even though it is possible to do so through an obligation of the person, which takes effect by law even upon something that has not yet come into the world as written in siman 209, nevertheless, not everyone is learned in the law, and because of the honor and suffering of people, the sages were compelled to enact that the sale shall be effective [it appears to me].

If his father was dying and did not have his burial needs, and he sold to someone from his inheritance as we have written, and the son died during the lifetime of the father, and afterwards the father died, the son's son removes from the hand of the purchasers that which his father sold. For when his father died, the property had not yet come into his possession, and when his grandfather died, this one inherited him, and the sale of his father is nothing. And the money that his father took from the purchasers, if he spent it on the burial needs of the grandfather, the son's son is obligated to pay the purchaser, for he is the heir of the grandfather and must pay his debts. But if he did not spend them on burial needs and he inherited nothing from his father, he does not need to pay his debt. And likewise, there is one who says that if Reuven borrowed from Yaakov his father, and afterwards sold his property, and Reuven and Yaakov died, and Chanoch the son of Reuven inherited the promissory note from Yaakov, Chanoch removes from the hand of the purchasers the property that his father sold for this debt, for he can say: "I inherit from my grandfather and not from my father." And this is specifically when Reuven died first, for if Yaakov died first, Reuven inherited him and was exempted from the debt, and the property remains in the hand of the purchasers.

One who writes his property to his son after his death, where he wrote to him "from today and after death," the legal body of the property belongs to the son from the time of the document, and the produce belongs to the father until he dies, for this is the explanation of "from today": the body is yours, and "after death": the produce is also yours. And similarly, if he wrote "after," its explanation is the same [Rashbam 136a]. The recipient cannot sell the produce as long as the giver is alive; rather, he can also sell "from today and after the death of the giver," such that the buyer acquires the body immediately and the produce after the death of the giver. And even if the recipient dies during the lifetime of the giver, the buyer has acquired it, for there is no case here of one transferring something that has not yet come into the world, since the body belongs to him, and for the father there remains only a property interest in the produce, which is not considered like the property interest in the body, and everything belongs to the son and he may sell it. This applies only to "from today and after death," but when this recipient sold the land to another only for its produce and died during the lifetime of the giver, the buyer does not acquire the produce, for the recipient himself had not yet acquired it [Netivot HaMishpat].

When one transfers ownership of movable property agav karka, the movable property must be in his possession. Even though we do not require them to be placed within the land, as was written in siman 202, nevertheless, we require them to be in his possession. Therefore, one who gave land to his fellow and transferred to him upon it money or movable property, he has not acquired them unless the money and the movable property were in his possession. He must bring proof that at the same time he transferred the land to him, they were in his possession. And even though it was explained in siman 60 that according to many of the poskim we are not exacting to know how he gave, and presumably he gave according to the law, this is when it is written in the document in the past tense, which is the language of admission, where it is written "I have given," and we say that the admission of a litigant is like a hundred witnesses. But when it is known that he spoke to him in the present tense, "I am giving," which is not the language of admission but rather the language of kinyan, that he is transferring ownership to him now, it is not effective, and the recipient must bring proof [Sma, as the Netivot HaMishpat wrote]. See there, section 14.

One who had a deposit in the hand of another may transfer it through sale or gift just as if it were in his own hand, because a deposit is considered as being in the domain of its owner, for it was not given to the bailee to spend, and it is under the presumption of being extant, and we do not fear that perhaps it was lost. The depositor can transfer it even when the deposit is in another city and the bailee is not here. However, regarding a loan, since it was given to be spent, the lender cannot transfer it to another, even when the money is still physically in the hand of the borrower, because it is not considered as being in the domain of the lender, and the lender can only transfer it through "the presence of the three of them," as written in siman 126. And if it was a loan with a deed, he transfers the deed through writing and delivery, as written in siman 66, and this is called "in his domain" because there is the deed here which is delivered to acquire the lien through it. And that which we said, that he can transfer a deposit, this is specifically when the bailee does not deny the deposit; but when he denies it and says "you did not deposit with me," he cannot transfer it, for this is as if it is not in his domain even though the truth is with him. And even though he can write a power of attorney even in the case of a denial, as written in siman 123, this is from the enactment of the sages as written there; but to transfer it entirely, he cannot. Even if he has witnesses that he deposited with him, nevertheless, since he denies it now, it is not considered as being in his domain [it appears to me]. And one who had a collateral in the hand of others can sell the surplus over his debt; only the lender collects his debt first, and the buyer receives the remainder. And so too he can consecrate it; and if the consecration takes effect against the debt of the lender, it was explained in Yoreh Deah siman 221. And so too one who leases his house to another, the house is called "in the domain of the lessor," such that he can sell it or lease it to another within the time of the first lessee, so that when his time concludes, it will be sold or leased to the second. And we do not say that it is not called "in his domain" and his current leasing is nothing; rather, it is exactly like his own. Therefore, the lessor cannot retract even before the conclusion of the time of the first. And even if he leased it without specification, we do not say that the acquisition does not take effect until after the time of the first and he can retract until that time; rather, the lease begins from now, and it is as if he said "from now and after such-and-such time," unless he explicitly said that the acquisition should not begin until after the time of the first, for then he can retract before that time. For that which our sages, of blessed memory, said, "a lease for a day is a sale," it is only in certain details like overcharging and the like, but the essence of the house is considered entirely the lessor's, for "a lease does not acquire" [Avodah Zarah 15a]. And so is the primary law, not like the one who hesitates in this. And regarding consecration, its law is like a deposit and was explained there [Netivot HaMishpat].

In siman 209 it was explained that even though a person cannot transfer ownership of something that has not yet come into the world or something that is not in his possession, nevertheless, an obligation is effective, in that he obligates his person to this. However, even this is only regarding a matter that is within his power to obtain, such as if he said, "When I acquire this object, I will sell it to you," and it is within his power to sell it to this person when he acquires it, and his obligation is effective. But when he obligates himself to buy a certain object and sell it to him, we see: if this object is in the hand of a shopkeeper or in the hand of a homeowner who is prone to sell his objects, his obligation takes effect. But when he is not prone to sell his objects, his obligation is not effective, and this is nothing more than a mere asmakhta. And even if he obligated himself with a fine if he does not provide this thing for him, it is not effective, and he does not need to pay the fine, for this is an asmakhta. And some say further that even when he performed it in a manner that does not contain an asmakhta, such as in an important beit din and "from now," nevertheless, if it is impossible for him to buy this thing unless he pays much more than its value, he is considered as one under duress and is exempt [Netivot HaMishpat].

An incident occurred involving Reuven, who borrowed a maneh from Shimon on the first of Nisan for twelve months, and executed for him a deed of sale for his field from now, without any condition or reservation, but placed the deed in escrow with Levi and said to him: "If I do not repay Shimon from now until such-and-such a time, give him this deed of sale." Reuven consumed the produce during this time, and during this time Shimon sold the field to Yehuda before he had acquired the deed of sale held by the escrow agent. When the time arrived and Reuven did not repay, the escrow agent gave the deed of sale to Shimon, and Yehuda took possession of the field and consumed its produce. Reuven came to evict Yehuda from the field on the claim that he purchased it before Shimon acquired the deed, and it is like one who sells something that is not in his domain. The Ra'avad, of blessed memory, ruled that we do not listen to him, because when the deed reached the hand of Shimon, he acquired the field retroactively from the time the deed was written, as written in siman 39. There is no issue of asmakhta here, according to the law of one who places a deed in escrow in siman 207, because since the sale was made "from now" without condition and without reservation and with a kinyan, even if the deed of sale were lost, the sale would not be voided, for he already acquired it with his money from the time the money was given [Beit Yosef at the end of siman 54]. Thus the field was in the domain of Shimon and his sale is valid, and this is not something that is not in his domain. This is specifically when he said "from now," but without "from now," even if it subsequently remained in the hand of Shimon, his prior sale is not valid, for it is like something that is not in his domain.

A neder and a shevuah take effect even upon something that is not in one's possession or that has not yet come into the world, as has been written in siman 209, section 12. And if one declares ownerless something that is not in his possession or that has not yet come into the world—that when they come into his possession or when it comes into the world it shall be hefker—there is one who wishes to say that it is hefker, for hefker is from the law of neder. However, the primary halachic ruling is that it is not at all from the law of neder, and the hefker does not take effect [Ktzot HaChoshen].