Siman 220

One who sells a ship and did not specify what he sold with it, has sold the mast, which is the tall wood upon which they hang the sail, and the sail is the curtain hanging from the mast against the wind. And so too in our ships that travel by steam by power of the curtain that they spread over the entire ship to protect from the sun, and the furnaces where they kindle the coals to raise the steam, and all the machinery with the wheels [it appears to me], and the anchors, which is heavy iron like a fork that holds back the ship when they wish to stop it, and in our language they call it an "anchor," and all the oars that lead it, and included in this are the ropes with which they pull the ships to the port. And in our times, the compass is also sold, which shows its path to whichever side, which contains a magnet wire. And the gangway, which is the bridge they make for the ship, and the ladder, which is the bridge by which they descend from upon the ship to the floor of the ship and ascend from there to the ship. And the water house, which is the structure in the ship where fresh water is kept for drinking, whether they put the water in the place itself or whether they place there many barrels full of fresh water; and the barrels themselves are not sold by default [it appears to me]. But he has not sold the small boat that is made to travel in to the dry land because the large one is unable to approach the dry land due to the shallowness of the water, and they descend in the small one for which a small amount of water suffices [Rashbam]. And so too that which is made to hunt fish in it, and it is not needed for the dry land, such as in a place where the seashore is deep and the large one goes until the dry land [Beit Yosef]. And he has not sold the slaves who serve in it, such as the sailors and the guards of the treasures and the expert sailor who leads it and the one appointed to oversee the entire ship. And not the merchandise within it, and not the packing bags, which are the large sacks in which they place merchandise and are always placed in the ship, like the sacks of the olive press in siman 215. When he says to him, "It and everything within it I sell to you," behold they are all sold. And even though regarding the olive press he did not sell the packing bags even in such a case, as I wrote there, this is because the olive press is land, and the movable objects are not nullified to the land with such a phrasing; but regarding a ship, which is movable objects, they are nullified [it appears to me]. And just as in a sale all that has been explained is not sold, so too regarding one who consecrates or gives a gift, for since they are complete movable objects, there is no difference between consecration, a gift, and a sale [Rashbam 73a]. And it appears to me that this which the sages, of blessed memory, said [ibid.]—that the merchandise is sold when he says to him "it and everything within it"—this is only regarding merchandise that belongs to the business of the ship, such as the wood and the coals and the sacks in which they place merchandise and the like. But general merchandise, what connection does it have to the ship? Unless he said, "This ship and everything found in it as it is now is sold to you" [see Rashbam 64b, s.v. "uvizman" etc. and "vedavka" etc. to be careful].

One who sells the wagon has not sold the mules when they are not hitched to it; if he sold the mules, he has not sold the wagon. But if they were hitched to one another, if he sold the wagon, he has sold the mules, for when they are joined together, the mules are to the wagon like an oven and a stove are to a house [the Maggid Mishneh, chapter 27]. Furthermore, the mules are subsumed under the name of the wagon when they are connected together [the Beit Yosef]. However, if he sold the mules, he has not sold the wagon even when they are hitched together, for the wagon is not subsumed after the mules, as one can ride upon the mules without the wagon, which is not the case with a wagon without mules.

Some say that this applies specifically to a seller, but regarding a lessor it is not so; for if one leased the wagon, he also leased the mules with it even when they are not hitched to the wagon, as it is not the way to lease a wagon from one person and mules from another, and presumably their intention was according to the custom that both are leased to him [Sma]. However, if he leased the mules, he did not lease the wagon even if they are hitched, for perhaps he leased them for riding. Therefore, if he leased them explicitly to travel in a wagon, he also leased the wagon even when they are not hitched, because of the reason that has been explained [it appears to me]:

If one sold the tzevaid, which is the yoke placed upon the oxen when they both go together for plowing or for a load, he has not sold the oxen. If he sold the oxen, he has not sold the tzevaid, even in a place where some people call the tzevaid "oxen." This is specifically when they are not tied together, but if they are tied together, if he sold the tzevaid he has sold the oxen, as in the case of a wagon and mules. Regarding one who leases, the law is also the same as there [it appears to me]. And some say that this which we say, that if he sold the oxen he has not sold the tzevaid, applies to an unspecified sale, for we say perhaps he bought them for slaughter; but if he specified that he bought them for plowing, he has sold the tzevaid with the oxen.

Our teacher, the Beit Yosef, wrote: One who sells the yoke has sold the cow; if he sold the cow, he has not sold the yoke. Thus far his words. Our teacher, the Rema, wrote that there are those who disagree and hold that if he sold the yoke, he has not sold the cow, and so it appears to me to be the primary view. Thus far his words. Our teacher, the Beit Yosef, further wrote: One who sells the wagon has sold the cattle; if he sold the cattle, he has not sold the wagon. And on this as well, our teacher, the Rema, wrote that there are those who disagree, as has been explained. And even though in the Tosefta, chapter 4 of Bava Batra, it is explicitly stated like the first opinion, they hold that we do not rule accordingly, for how is it different from a pair and cattle? And some distinguish that regarding a pair, since they are two oxen, they are not subordinate to the pair, which is not the case for one cow; but this is not a logical reasoning at all. And some say that it deals with when they are tied together [Sma], and in such a case it is obvious that there is no dispute here, just as with a pair and cattle. However, from the Tosefta there is not such a proof, for perhaps in their time the language was such that the name "yoke" also included the cow, and the name "wagon" included the cattle [so wrote the Kesef Mishneh, chapter 27].

One who sells a donkey has sold the marda'at—and this is what is made for the donkey to be warmed by—and the saddle, even if they are not upon it, because a donkey is ordinarily for riding and these are the essential implements of riding. The same law applies when one sells another animal for riding: he has sold the implements of riding. However, he has not sold the sack nor the women's carriage, as these are made for a load. Therefore, if he specified that he is purchasing it for a load as well, he has acquired the sack and the carriage [Sma]. When he did not specify, he has not acquired them even if the sack and the carriage were upon the donkey at the time of the sale. And some say that this is because of a doubt, as it is an inquiry in the Gemara [Bava Batra 78a]. The practical difference in this is if the buyer has not yet given the money: for according to the first opinion, we extract it from him, and according to the "some say," since he is the possessor, we do not extract it from him. When he said, "it and everything that is upon it is sold to you," they are sold in any case; and likewise if he said, "everything that is fit to be upon it."

Our sages, of blessed memory, said [ibid. 77b] that in all these matters the money is not proof, such as where one sold him the yoke or the wagon and he gave one hundred zuz for it, where it is obvious that he did not give one hundred zuz for a yoke, and nevertheless this is not proof. We look at the excess that he gave over the value of the purchase: if the excess is within an amount that the mind might err, there is ona'ah and cancellation of the purchase like the law of any seller and buyer. But if the excess is an amount that the mind does not err, such as where he gave one hundred zuz for the yoke, the purchase is not cancelled, and certainly he gave them to him as a gift; for since most people do not call the oxen "yoke," certainly his intention was for the yoke alone and the extra money is a gift. Therefore, if many people, when they mention "yoke," intend also the oxen, then the money informs us. And if all people call the oxen "yoke," and when they mention a yoke without oxen they say explicitly "yoke alone," then even without the notification of the money, everything is sold. The Tur wrote that in all this that we have said, that the buyer does not acquire the oxen, even if he has not yet given the money, and even if he seized the oxen, we extract the money and the oxen from him and give them to the seller, for any matter that is not due to doubt, his seizing is not effective. In the Shulchan Aruch this was not brought, for it is possible that our sages, of blessed memory, did not say this with certainty, but rather because the seller is the muḥzak. And in truth, the reasoning of "gift" is not a likely logic, for the majority of people do not give gifts. However, this is certainly so when there is a minority who call the oxen "yoke" and the buyer is the muḥzak; certainly he can say "kim li that I am from the minority." And granted that he cannot seize them, nevertheless he can cancel the purchase, for we do not follow the majority in monetary matters when the muḥzak has a claim, and the claim of "kim li that I am from the minority" is a fine claim [Tosafot at the beginning of Perek HaManiach], and perhaps in this even the Tur admits, and so it appears.

One who sells a maidservant has sold the vessels that are upon her, which are the garments she always wears and are upon her even if they are worth a hundred maneh, but he has not sold the jewelry that is upon her, such as the bracelets, the nose-rings, the rings, and the necklaces on her neck. For garments are a necessity for her to be clothed, therefore they are included with her body, but jewelry is primarily only for beauty. And if he said to him, "The maidservant and everything that is upon her are sold to you," behold they are all sold, for with this phrasing they too are included.

One who says to his fellow, "I am selling you a pregnant maidservant," or "I am selling you a pregnant cow," he has also sold him the offspring. And there are those who say that even if he sold to him without specification, if they are pregnant, the offspring is sold when he said "this maidservant" or "this cow" [Sma]. However, if he said to him, "I am selling you a nursing maidservant," or "I am selling you a nursing cow," he has not sold him the offspring, for the seller can say, "That which I said to you 'nursing,' my intention was not regarding the offspring, but rather regarding the milk, that you should have it from the cow, and the maidservant shall nurse the children," and the hand of the buyer is at a disadvantage. But regarding a pregnant one, he cannot say that his intention was for the milk, for she has not yet given birth and the milk is not before us, and we depend more upon the fetus which is as if it is before us. But regarding a donkey, when he said even "I am selling you a nursing donkey," the offspring is also sold, for a person does not purchase a donkey for its milk, as it is impure.

One who says to his fellow, "The head of this slave" or "the head of this donkey I sell to you," since it is not relevant for eating, perforce the intention is to sell him a portion in it according to the value of the head. And since the head is a limb upon which life depends, he has sold half of it. And such is the law regarding any limb upon which life depends, for by logic it should have been sold entirely, as in the case of one who consecrates a limb upon which life depends in a pure animal, where the sanctity spreads through all of it, as the Rambam, of blessed memory, wrote in the fifteenth chapter of Korbanot. However, regarding a sale it is impossible to say so, for perhaps he did not sell him all of it, whereas regarding consecration it is a decree of the Torah; and regarding an impure animal, even regarding consecration it is not so, and therefore in a sale, half is sold. But if he said to him, "The hand of this slave" or "the hand of this donkey I sell to you," they shall appraise that limb for what work it is fit for, and according to its value he shall take. And when he says to him, "The head of this cow I sell to you" or any other pure animal, he has sold only the head alone, for the head is always sold in the slaughterhouse, and his intention is simply that when he slaughters it, the head shall belong to the buyer. And all of this is the opinion of the Rambam, of blessed memory, in the twenty-seventh chapter. And there are those who wrote that according to our version in the Gemara [Arakhin 20a] where we learn: "The head of this slave is consecrated," and it is a consecration of partners; "The head of this slave is sold to you," they appraise between them—it follows that in a sale an appraisal is required even for the head. And it appears to me that the Rambam interpreted "they appraise" as "they divide," and so it is proven from Rashi there who questioned why the language was changed, implying that this and that are one and the same. And the change of language appears to me to be because the term "appraise" refers to the value [end of the seventh chapter of Bava Batra], and when they are partners in the slave, one can compel the second with the rule of "buy it or I will buy it," and of necessity either one will take money from the second or they will sell him and divide the money. But regarding consecration, "buy it or I will buy it" is not relevant. And even if we say that an appraisal is required, since life depends upon it, it is obvious that it is not worth less than half.

One who sells the head of a large animal has not sold the legs; if he sold the legs, he has not sold the head. If he sold the lung, he has not sold the liver; if he sold the liver, he has not sold the lung. However, in a small animal: if he sold the head, he has sold the legs; if he sold the legs, he has not sold the head. If he sold the lung, he has sold the liver; if he sold the liver, he has not sold the lung. And even if he sold after slaughter, the head and the lung are sold, the legs and the liver [Sma]. And these matters are only stated in a place where there is no known custom, but in a place where there is a known custom, everything follows the custom.

One who sells a pit has not sold its water, for in a pit where collected water is gathered, the water is not included in the sale of the pit. However, in a well of living water, if he sold the well, he has sold its water [ibid.]. And if he sold a dung heap, he has sold its manure; a dung heap refers to a place designated for placing manure, and the manure is subordinate to the place. And there are those who say that also regarding a pit, when he sold it, he has sold its water. But if he sold the manure, he has not sold the dung heap, and if he sold the water, he has not sold the pit or the well, for the primary object is not drawn after something that is replaced every time.

If one sold a dovecote, he has sold the pigeons; if he sold a beehive, he has sold the bees, for the pigeons are called by the name of the dovecote and the bees by the name of the beehive, as the primary essence of the name "dovecote" refers to the pigeons and the primary essence of the name "beehive" refers to the bees. And some say that the same applies in reverse: that when he sold pigeons, he sold the dovecote, and when he sold bees, he sold the beehive, for the dovecote and the beehive have no name at all for themselves. And all this is when he specified that he is selling him all the fruit of the dovecote and the beehive. However, if he sold the fruit of the beehive without specification, it is not only that he did not sell the beehive, but even the bees he did not sell in their entirety. And thus our sages, of blessed memory, said: that he only sold to him in a manner that his beehive will not be destroyed. The buyer shall take the first three swarms, which are the groups born first, for such is the way of the beehive: that at the beginning of the summer days, a swarm of young bees born from the mothers emerges from the beehive, and they sit on a tree branch, and he brings a new beehive and puts them inside it. And likewise at the end of nine or ten days, another swarm emerges and he brings another empty beehive and puts them inside it, and likewise the third [Rashbam, ibid.]. From here onwards, the buyer takes a swarm and leaves a swarm for the seller so that the beehive may be settled. And likewise regarding a dovecote, if he sold him the fruit of his dovecote without specification, he cannot take all the fledglings that will be born in it from now on, because the mothers will flee and it will result in the dovecote being destroyed. Rather, he leaves some of them in order to settle the dovecote. And how many does he leave? If there were mothers and daughters in it at the time of their sale, he leaves the first brood that the mothers give birth to after the sale. It is the way of pigeons to produce two offspring every month, a male and a female, and every two offspring are called a "brood." And he leaves the first for the seller so that the mothers will have company with the first brood and with the daughters that are with them who were already born from them at the time of the sale. And whatever is born from the mothers from then on, the buyer shall take them, for it was established by our sages, of blessed memory, that every mother must have company with two pairs that emerge from her. And likewise from the daughters that were present at the time of the sale, he leaves from what they give birth to after the sale two broods, so that the daughters will have company with two pairs that they gave birth to. And everything born after the two broods of the daughters and after the first brood of the mothers belongs entirely to the buyer. And they asked in the Gemara [ibid.]: Why must we leave two broods for the daughters? Let one brood suffice, and she will have company with her mother and with her daughter? And they answered that the mother has company with her daughter, but the daughter does not have company with the mother. And all this is according to the explanation of the Rambam on the sugya, but the Rashbam explains that one brood suffices for every mother. And this matter depends on the custom of the places, as I wrote in siman 214. And in all these matters, there is no difference between a sale and a gift, and even though regarding attached items there is a difference, as I wrote in siman 215, nevertheless in movable property there is no difference. And likewise regarding hekdesh, as I wrote in section 1. And we have already explained that in every place where our sages, of blessed memory, said that the buyer does not acquire this, seizing the object does not avail, and even if he has not yet given the money, we remove it from him and give it to the seller, but not in a matter that is a doubt.