Siman 212

A person cannot transfer to another, neither by sale nor by gift, except for something that has substance. But something that has no substance, even though it exists in the world and is in his possession, since there is no substance to it, the kinyan has nothing upon which to take effect. How so? A person cannot transfer to his fellow the scent of an apple, nor the taste of honey, nor the appearance of crystal, for scent, taste, and appearance have no substance in them. Rather, he must transfer the apple to him to smell it, and the honey to taste from it, and the crystal to benefit from its appearance. Therefore, if he transferred the residence of his house to his fellow, it is not seized by the kinyan, for a residence has no substance; rather, he must transfer his house to him to dwell in it. And the Rambam, of blessed memory, wrote in chapter 22: One who transfers to his fellow the eating of the fruits of this palm tree, or the residence of this house, has not acquired until he transfers the body of this house to dwell in it and the body of the tree to eat its fruits. Thus far his words. For he holds that even though the fruits exist in the world, nevertheless, the term "eating" is something that has no substance, like a residence and a scent, and he must transfer to him the thing that is eaten, such as bread, meat, and fruits. And some disagree and hold that "eating" is something that has substance, and if the fruits have already come into the world, he can transfer their eating [Tur according to the view of the Beit Yosef]. And so too, one who sells the airspace of his ruin or the airspace of his courtyard—for example, if his fellow had a wall adjacent to his courtyard or his ruin, and he transferred its airspace to him so that his fellow could extend beams into his airspace—it is nothing, whether by sale or by gift, for airspace has no substance, unless he transfers his courtyard or ruin to him to extend beams into it. And so too, two who have a courtyard in partnership and accepted a kinyan to divide the courtyard, it is nothing, for a division has no substance; rather, they must clarify the portions and perform a kinyan that the eastern portion belongs to this one and the western portion belongs to that one, as was written in siman 157 [see Sma subsection 1 and Taz, and it requires further study; but the main point is like our teacher, the Beit Yosef, and so wrote the Gra in subsection 1; and examine this].

There is reason to doubt whether an obligation of the person is effective for something that has no substance, similar to something that has not yet come into the world as was explained in siman 209, section 10. Or, perhaps it is not comparable, for specifically if the kinyan does not take effect because the object has not yet come into the world, for this an obligation of the person is effective since the person is in the world, and the obligation is effective for when the object comes into the world. However, when the object has no substance, even though he obligates his person which has substance, the obligation will still never come to light, for the object that he obligated himself in will never have substance. And so it appears to me to be the primary law [and so it appears from Tosafot, Bava Batra 3a, s.v. "kinyan devarim" and from the sugya itself there is proof, since it does not answer thus; and delve into this].

By the law of the kingdom or by the established custom in the country, a kinyan is effective even for something that has no substance, just as the custom is widespread regarding those who hold the lease for kosher meat, who reach an agreement with the residents of the settlement that they shall pay such and such every year and he may slaughter as he wishes without payment for every pound according to the law; and this is something that has no substance, yet we have not seen anyone who challenges this. And so too regarding all similar matters in other affairs, and see what I wrote in siman 201, section 3. And so too it is effective for something that has not yet come into the world and for something that is not in his possession, and see what I wrote in siman 209, section 16.

And all this is when he sold or gave to another, but if he sold to someone a house or a ruin or a courtyard or a tree and reserved for himself the dwelling of the house, the airspace of the ruin and the courtyard, or the eating of the fruits, it is effective, for he reserved with a generous eye, and it is as if he explicitly stated that he reserved for himself a place for the airspace and the dwelling, and a place in the body of the tree for the eating of the fruits. Our teacher, the Beit Yosef, wrote that even if he did not mention a reservation in the courtyard at all, but rather sold him a house and said to him, "on condition that the upper story"—which is a roof that has a parapet of ten tefachs—"shall be mine," we say that he reserved for himself a place in the courtyard to extend brackets from the story to the courtyard if he also sold him the courtyard. For since he did not need this condition, as even without it the upper story is not sold within the general sale of the house when not explicitly stated, as written in siman 214, we say that the superfluous language is effective to extend brackets from the story to the courtyard [ibid. in the Tur]. And even though a condition can anyway be made regarding anything, as written in siman 209, section 13, that is if the condition was explicit regarding the airspace; but regarding what we derive from superfluous language, the condition would not be effective if we did not say that he reserved a place for this. Our teacher, the Rema, wrote that if he reserved for himself a right and also reserved for another person, we say that just as he reserved for himself with a generous eye and in an effective manner, so too he reserved for his fellow, for certainly he intended one matter. Thus far his words. And even though regarding one who transfers something for which a kinyan is effective along with something for which it is not effective there is a dispute, as written in siman 209, it is different there, for for this one the kinyan is effective and for this one it is not effective at all; but here, where for both of them it is not effective without a reservation, and since the transfer was at one time, we say that just as he reserved for himself, so too he reserved for the other. And when he reserves for himself and for another, he must say that he gives this to the other as a gift, for a reservation is not a gift. See there in the Shach, and it requires further study, for the Rema was not dealing with this, and it is obvious that it is so.

Our teacher, the Rema, wrote: One who says, "Ploni shall dwell in this house," and did not specify the duration of the dwelling, even a single hour is implied. Thus far his words. And it is not similar to what he wrote in siman 60, section 6, that at the very least he is obligated for one year; it is different there, for from his wording it is proven so, as he said "either to provide him sustenance or to give him a maneh per year," behold, he certainly obligated himself for a year. And we explained additional reasons there. And know that his intention is not that he spoke with this exact phrasing, for this phrasing is not effective even for an hour since it possesses no substance, as has been explained; rather, his intention is that he said, "He shall acquire the house for dwelling," and nevertheless he can say that he only intended for a single hour [Sma]. And in siman 60 he brought another opinion, that when he spoke without specification, it implies as long as he shall need, and there we explained this with the help of Heaven; see there.

A document in which it is written that they performed a kinyan from him that he gives to so-and-so to dwell in his house is nothing, for then the essence of the kinyan is on the dwelling, and there is no substance in a dwelling. But if the dwelling is specified first in the document and afterwards the kinyan, such as where it is written that Reuven gave to Shimon to dwell in his house and they performed a kinyan from him on this, we must interpret the language of the document such that the kinyan was in an effective manner, that he transferred the house to him to dwell in it. And all the more so if they returned the kinyan to the bottom of the document, where they wrote "and we performed a kinyan from so-and-so regarding all that is written and specified above," for certainly they wrote it for the empowerment of the holder and performed the kinyan from him in an effective manner. And even though in all matters the hand of the holder of the document is at a disadvantage, nevertheless, a kinyan is a powerful matter, and since we can interpret it so that the kinyan is not nullified, we interpret it thus. And such is the law regarding a kinyan of fruit: when it is possible to interpret the kinyan in the document in an effective manner, we interpret it so. And likewise, if it is written in the document that he gave him the power to take the fruit or the dwelling according to the enactment of our sages, of blessed memory, even if the kinyan was written in an ineffective manner, nevertheless, he has admitted that he transferred it to him according to the enactment of the sages, and it should be interpreted that he gave it to him in an effective manner. And all the more so if he wrote that he gave it to him in every manner that is most effective according to the law. And all this is when the litigant or the witnesses are proficient in these laws, for if not so, what does the writing avail since they do not know how it is effective [it appears to me]. Therefore, it is good to make a document in a beit din, for every beit din is presumably proficient in the laws.

As I have written in siman 209, when a person wishes to sell the fruit of his trees when they have not yet grown, he should not sell the fruit because they are a thing that has not yet come into the world. Rather, he should sell the trees for their fruit for such and such a time. And perhaps you will say that according to this, this is not a sale of fruit but a sale of land for a fixed time, and what difference is there between one and the other? In truth, there is a great difference, for one who sells the body of the land for a fixed time, the buyer uses the body of the land as he desires, to spread out fruit, to make a threshing floor, to station animals, and he builds and acts throughout his fixed time just as one who acquires a permanent acquisition acts forever, and only at the conclusion of the time does the land return to the owners. But one who sells a tree for its fruit cannot use the tree for any use, and likewise with the land, and all the more so he cannot change its form and shall not build. And that which we said, that one who acquires a field for fruit has no right to do anything with the body of the field, this is specifically regarding an acquisition of fruit for a time; but an acquisition of fruit for all the days of his life, such as a husband regarding the nichsei melog of his wife, he may do with the land whatever he wishes, as I have written in Even HaEzer siman 90.

And what difference is there between one who sells this field for its fruits and one who sells the fruits of this field after they have come into the world? For one who sells the fruits of the field, the buyer has no right to use this field at all, even to enter it, except at the time of harvesting the fruits, and the owner of the field uses this field as he desires. But one who sells a field for its fruits, the owner of the field cannot enter it except with the knowledge of the buyer, and the buyer has the right to use it for entry and exit as he desires. And what difference is there between one who acquires a field for its fruits and one who leases a field from his fellow? For one who acquires a field for its fruits has the right to plant it or sow it whenever he wants for the entire duration of the fixed time, but a lessee is not so, as I wrote in siman 320, for a lessee is not permitted to deviate from its custom, and in a year when it is customary to leave it fallow, he is not permitted to sow. And there is a further difference, for a lessee is not permitted to lease to another, but the buyer may transfer to another that which he acquired. And even though according to the opinion of the Rambam in chapter 5 of Laws of Hiring, a lessee can lease out land, that is regarding a house and when he leases it to a number of household members who are not more numerous than his own, as I wrote in siman 316, and he shall return it to him in its entirety as he delivered it to him, and if he causes damage, the damage will be recognizable; but in a field, we fear that the other will exhaust it with his constant sowing, and the damage will not be recognizable at the time [Sma]. And also in a house, the buyer can transfer it even to many people, which is not the case with a lessee. And there is a further difference, for one who sells a field for fruits, the buyer has permission only to sow and plant and walk in it, but to station animals and make a threshing floor, he certainly may not do so, for he only sold it to him for fruits; but with a lessee of a field, he can do in it whatever he wants during the duration of his lease, except for excavations and buildings [it appears to me].

The Rambam, of blessed memory, wrote in chapter 22: The law of hekdesh, the law of the poor, and the law of vows is not like the law of an ordinary person. For if a person said, "Whatever my animal gives birth to shall be hekdesh for the upkeep of the Temple," or "shall be forbidden to me," or "shall be given to tzedakah," even though it does not become sanctified because it is not yet in the world, he is nevertheless obligated to fulfill his word, as it is said, "he shall do according to all that proceeds from his mouth." Since this is the case, if a person gave instructions when he was a shekhiv mera and said, "Whatever this tree produces shall be for the poor," or "the rent of this house shall be for the poor," the poor have acquired them. Thus far his words. For since the vow takes effect upon him and it is a mitzvah to fulfill his words, the lien takes effect upon his property and the heirs must pay [the creditor], and it is as if he transferred ownership of the house to the poor until they receive the rent, and likewise he transferred the tree to them until they receive the fruits, and his sons do not inherit from him until they first fulfill the vow [Sma]. And there are some of our teachers who disagree with the Rambam on two matters. First, that a vow does not take effect until he takes it upon himself, such as if he said, "When my animal gives birth," or "this tree produces fruit," or "the rent of this house, I will give it to hekdesh or to the poor," it is a vow because he took it upon himself by saying "I will give it." But when he said "it shall be hekdesh," or "they shall be for the poor," or "it shall be given," or "you shall give," neither hekdesh nor tzedakah have acquired it, for a person cannot sanctify a thing that is not yet in the world, and he did not take the vow upon himself but rather said that it should be so or commanded to do so, and this is not a vow and his words are void. Second, even when he said "I will give it," which is a vow, this is only when the one who vowed is alive; but if he died, it is nothing, for there is no person here upon whom the vow is incumbent, and his property is not liened for his vow unless the fulfillment of the vow was during his lifetime, such as if during his lifetime the tree produced the fruit or the rent of the house already existed such that the tenant was obligated to pay the rental fee. But when he died before they came into the world, there is no one upon whom the vow can take effect [ibid.]. Our teacher, the Rema, wrote that this opinion is primary, and so it is proper to rule. According to this, a shekhiv mera who gives his instructions and wants to leave for tzedakah the profit from houses, shops, and money, should say: "I hereby sanctify to the poor" or "to such-and-such tzedakah the house or the shop or the money for their fruits," for this is a valid acquisition even for a healthy person, and the poor or the hekdesh have acquired it. For on account of a vow, there is no place for it to take effect according to this opinion when the taking effect of the vow was after his death, unless it took effect during his lifetime, for then his property became obligated. Therefore, when he said "I will give a maneh from my property" or "such-and-such object" or "such-and-such land," the vow takes effect immediately since they are in the world. And all the more so when he said "a maneh of my property shall be for so-and-so" or "such-and-such object" or "such-and-such land shall be for so-and-so," that so-and-so acquired it immediately since the thing is in existence. And if he swore to fulfill the sale or the gift, it has been explained in siman 209, see there. And when he sanctified a debt that he has against another, that when it is paid he will give it to hekdesh, it is also a thing that is not yet in the world, and it is like fruit from a tree and depends on his wording: if he said "I will give it" and it was collected in his lifetime, the vow takes effect and his property became liened as has been written [Shach]. And if there is a collateral for the debt or a guarantee on the property of the debtor that he can collect from them in the courts, it appears to me that the vow takes effect during his lifetime, for the vow has a place to take effect. And we have already explained in siman 209 that money for fruits is like a palm tree for its fruits, and see what I wrote at the end of siman 66.

One who purchased land with the intent to make it hekdesh but did not utter anything from his mouth, some say that since he resolved in his heart to give to tzedakah, he is obligated to give, as it is stated regarding the contribution for the Mishkan, "everyone whose heart motivates him," and regarding a sacrifice it is also written, "and everyone whose heart motivates him, burnt offerings." Behold, regarding tzedakah and hekdesh, an obligation in the heart is an obligation. And there is one who says that we do not derive chullin from kodashim, for the Mishkan also had the status of kodashim, and nowadays all hekdesh has the status of chullin, as I wrote in siman 95; therefore, as long as he did not express it with his lips, it is nothing. Our teacher, the Rema, wrote that one should be stringent like the first opinion, and he wrote similarly in Yoreh Deah siman 258, that even though we do not derive other matters from kodashim, nevertheless all vows of tzedakah are included in "whose heart motivates him." And this is only regarding vows of tzedakah, but regarding a vow that is not a matter of tzedakah, and similarly regarding oaths and other prohibitions, acceptance in the heart is nothing, as written in Yoreh Deah siman 210 and siman 239, and in Orach Chaim siman 553 and siman 608, that regarding the acceptance of a fast while it is still day on Tisha B'Av and Yom Kippur, it is nothing. And that which was explained there in siman 562, that for the acceptance of a fast, acceptance in the heart is effective, it is not for an obligation, but rather it is effective so that it should not be like a fast that one did not accept upon himself while it was still day, which is not a fast at all; for since we find regarding sacrifices that acceptance in the heart is an acceptance for an obligation, therefore also regarding a fast it is effective at least to consider it a fast [as appears to me to be correct, and thus the difficulty of the Taz on the Tur and the Gra on our teacher, the Rema, that they contradict themselves, is settled; and so it appears from Tosafot Avodah Zarah 34a. And delve into this].

From what we wrote in section 9, it has been explained that if one said, "This land, when I acquire it, shall be hekdesh," it is nothing, for a person cannot consecrate a thing that has not yet come into the world, and there is also no vow here since he did not say, "I will consecrate it." However, if he said, "When I acquire it, I will consecrate it," or "I will give it to hekdesh" or "to tzedakah," even though he cannot consecrate a thing that has not yet come into the world, nevertheless, he is obligated by the law of a vow, and when he purchases it, he is obligated to fulfill his vow. And if he said, "This land, I will purchase it and I will consecrate it," he is obligated to purchase it and to consecrate it. And according to the Rambam, even if he said, "it shall be hekdesh," it is a vow, as I have written.