Siman 222

Our sages, of blessed memory, said in Kiddushin [73b]: The owner of the purchase is trusted to say, "I sold to this one and I did not sell to that one." In what case does this apply? At a time when the purchase is in his hand. But if the purchase is not in his hand, he is not trusted. And this is in a case where he took money from both of them and said, "One was with my consent and one was against my will," and it is not known which was with his consent and which was not with his consent. There are some of our teachers who explained that this was the essence of the matter: that when two contest the purchase, this one says "it was sold to me" and this one says "it was sold to me," and both of them gave him money—at a time when the purchase is in his hand, he is trusted to say, "I sold to this one willingly, and this other one gave me his money against my will." But when the purchase is not in his hand and both of them are holding the purchase [Rashi], he is not trusted because after it left his hand, it was not incumbent upon him to be precise, and he is not trusted even when he says "I remember." Consequently, their law is like the law of two holding a garment in siman 138. And if he did not receive money except from one, he is trusted to say, "From this one I received and I consented to sell to him," even when the purchase is not in his hand. And even though he is only a single witness and he has no migo to hand it over to whomever he wants—and why should we believe him more than any other single witness—nevertheless, this is like an enactment to believe the seller because many times there are no witnesses in the matter, and it is like the trustworthiness of a midwife in Even HaEzer siman 4 [Ran]. And some say that this is specifically when the buyers are standing before him [ibid.]. This is the approach of Rashi and the Rif according to the opinion of the Rosh, and he added further that in a case where he took money from one, he is trusted even to say that he consented to the other, and this one threw his money against his will.

And there are some of our teachers who say that when the purchase is not in his hand, he is not believed more than any other single witness; and when the purchase is in his hand, he is believed by virtue of a migo, for he could have handed it over to whomever he wished. And if he received from one, he is not believed to say that he sold it to the second even when the purchase is in his hand, for this is like a migo in the place of witnesses, as we are witnesses that he consented to the one who gave the money. And that which the sages, of blessed memory, said regarding one who holds money from both of them, it refers to when the purchase is in his hand and he holds money from both of them and does not remember to whom he sold it willingly; both of them swear and each takes half, according to the law of two who are holding a garment. And there is no difference whether the purchase is in the hand of the seller or whether it is in the hand of both of them. And when the purchase is not in his hand and they also do not possess it, the law is "whoever is stronger prevails." And if the one whom the seller assists prevails, there is no oath here, for a witness who assists exempts from an oath; and if the second prevails, he must swear to contradict the seller [Tur]. And this is the approach of the Tosafot, the Rosh, Rabbeinu Chananel, and the Tur:

The Rambam, of blessed memory, wrote in chapter 20: The seller of an item is believed to say, "I sold to this one and I did not sell to that one." When is this? At a time when the item is in his possession. But if the item is not in his possession, he is merely a single witness, and his status in this testimony is like the status of any person, for he is not an interested party in his testimony. Therefore, if he took the money from two people, taking from one with his consent and from one against his will, and he did not know from whom he took with consent and from whom against his will—whether the item was in his hand or whether both of them were seizing it—there is no testimony here at all, and each of them swears according to the enactment of the sages while holding a sacred object and takes half the item and half the money. Thus far his words. And when the item is in his hand and he has taken money from one, whether he is believed to say that he sold it to the other, the Rambam did not clarify. According to the opinion of our teacher, the Beit Yosef, he holds that he is not believed, and according to this, his opinion is like the previous opinion. And if there are no witnesses as to from whom he received the money, the seller is believed to say, "I received from this one." And some say further that when there are no witnesses who know from whom he received, the seller is believed to say, "I received from Reuven and I consented to Shimon," by means of a migo that he could have said, "I did not receive from Reuven at all." For specifically when it is known by witnesses he is not believed, but without witnesses he is believed [Shach]. And so appears the opinion of our teacher, the Rema, who wrote: It makes no difference whether he took money from one or whether he took money from two, and he is believed to say that one of them gave against his will. Thus far his words. And it must be said that his intention is when there are no witnesses, as has been explained. And even against one witness the seller is believed, since his item is in his hand.

And for the law, one of the great authorities decided that if there was not yet a kinyan from both of them, even if one performed a kinyan and the seller denies it and says that he did not consent to its sale and it was done against his will, the seller is believed. For since at the time he denies it the claim is against himself, and he possesses the chazakah of money and the chazakah of mara kamma, and automatically he is able afterwards to transfer it to another with a kinyan. But when both of them already performed a kinyan before witnesses, and there are witnesses that he consented to one of them, as he said to him "pull and acquire," only that they do not know to whom he consented, and in any case it is known by way of witnesses that the purchase belongs to one of the buyers and not to the seller, and the seller's claim is not for himself in this, he is not believed to say that he consented to the one who did not receive the money. Even if it was not clarified from whom he received it except by the word of the seller, he is not believed with a migo that he could have said regarding the money he received from Reuven that he received it from Shimon, for this is not a good migo, that which was in his power to rob and give to another. And if it is known by witnesses that he consented to Reuven when he gave the money, and afterwards Reuven performed meshikhah, according to all the seller is not believed to say that he retracted after the giving of the money before the meshikhah until he clarifies it with witnesses [Netivot HaMishpat]. And all this is when the purchase is in the hand of the seller.

And when his purchase is not in his hand, and it has been explained that the seller is like a single witness, and for the one whom he assists he is exempt from an oath, and for the one whom he does not assist he obligates him in a biblical oath to contradict him—this is specifically when each of them claims that the seller sold it to him and his fellow is holding it as a robbery, and both of them exempt the seller from an oath. But when the second one claims that the seller sold it to him with a kinyan of his own will and afterward was negligent and gave it to the other, behold the seller is liable for a shevuat hesset against his claim, and consequently he is not fit for testimony, for any witness who requires an oath is not a witness, as I wrote in siman 121. And this is specifically when the buyer claims that he performed a kinyan, but with a claim of giving money alone, even though he is liable for "He who punished," nevertheless we have not found that through this liability he should be disqualified for testimony [Shach]. And even with a kinyan, it is only when the purchase is worth more than the money he gave, for if not so, there is no denial of money here and he is not a witness who requires an oath [Netivot HaMishpat].

One who purchases an item from one of five people, and each of them claims from him and says, "I am the owner of the item," and he does not know from which of them he purchased, he places the value of the item between them and withdraws. This is not similar to what was written in siman 365 regarding one who robbed one of five, where he must return to each one when they claim from him, for there he committed a transgression and it is fitting that he should pay each one; but in a purchase, why should he pay more? And even though even without a transgression we find that he pays each one in the case of a deposit, where two deposited with him in two bundles, this one a maneh and this one two hundred, and each one says, "The two hundred is mine," and all the more so when only one of them deposited and each one says, "I deposited," that he pays each one as was written in siman 300—there too the reason is that he should have been precise as to who deposited with him, for a deposit is for a duration of time, and he was negligent in that he was not precise as to who the depositor was. But in a purchase, where he thinks that the seller will immediately come and take his money, he did not have to be precise [Shach]. According to this, if he purchased on credit for a set time, it is similar to a deposit [Netivot HaMishpat]. However, according to this view, if he purchased from one on credit and afterwards two or more claimed from him, he would have to pay each one, and it does not appear so from all the poskim. A proof for this is that this law also applies to the betrothal of a woman regarding the ketubah, as was written in Even HaEzer siman 49, and the Shas in Yevamot [118b] compares a sale to betrothal, and behold, the payment of the ketubah is over a long period of time. Furthermore, that which the sages, of blessed memory, said regarding a deposit, that "he should have been precise," its meaning is that he should have written the name of the depositor on the pouch of the deposit, as the Rambam wrote in the fifth chapter of She'elah, and in a purchase this is not applicable. Furthermore, regarding a deposit he is a guardian and it is incumbent upon him to be precise, but one who purchases with money for his purchase, the seller has no involvement in the purchaser's guarding of his money; and even if they are lost to an accident, he shall pay others even if he designated these specific coins that are with him to pay with them, and the law of guardianship does not apply to him at all. Therefore, the primary ruling is that in a purchase he does not need to pay all of them in any case, and even to fulfill his obligation toward Heaven he is not required [and therefore the Shas there compares purchase to betrothal, and in Bava Metzia 37 it compares deposit to robbery; and it appears to me that even the Shach only stated a general reason and not for the practical ruling].

What shall he do with the money? He shall place it in beit din and it shall be left until they admit or until Eliyahu comes. And some say that he does not need to place it in beit din, but rather it shall remain in his hand [Shach] if they do not agree that he should place it between them and withdraw. And it appears to me that even according to this opinion, if they say, "It is not our will to leave the money with you, bring it to beit din," he is obligated to do so since they all say so. And some say that the buyer shall swear a shevuat hesset that he does not know from whom he bought [ibid.] since each one claims against him a certain claim. And I wonder, for there is no denial of money here that we should obligate him in an oath, for he is removing it from under his hand, and the denial is between them. It is certain that to one of them they can say, "Swear and take," but what oath do they have with the buyer? And it is possible that even those who say this only said it when he leaves the money under his hand [and the Shach is according to his reasoning, and delve into this].

Our teacher, the Beit Yosef, wrote in section 2 that if the buyer is a chasid, he gives payment to each and every one in order to fulfill his obligation toward Heaven. Thus far his words. And a chasid is of a higher status than a yerei shamayim, for a yerei shamayim does not desire to forgo his own property in a business transaction, whereas the chasid forgoes his own [Shabbat 120b]. And this is specifically when he purchased from one of them and they are claiming from him; but if he purchased from one of their fathers and they are not claiming from him, but rather he says, "I purchased from one of your fathers and I do not know from whom," he does not need to give to each one even if he comes to fulfill his obligation toward Heaven [Sma]. And there are those who disagree with all of this and hold that regarding a purchase, since he did not commit a prohibition and was not negligent, he is exempt even from paying each one to fulfill his obligation toward Heaven [Shach]. And this is the opinion of the Ramban and the Rashba [Maggid Mishneh chapter 20]. And some say that certainly according to the law, even to fulfill his obligation toward Heaven he is exempt, but nevertheless, it is proper for the chasid to do so as a measure of chasidut [Ktzot HaChoshen].

If one purchased an item from five people, and he denied the claim of one of them and swore falsely, and subsequently performed teshuvah and desires to pay, and each one of them claims him and says, "I am the one whom you denied and to whom you swore falsely," and he says, "I do not know," he is obligated to pay each and every one. Because he committed a transgression, we penalize him as in the case of gezel. And the same applies even if he did not perform teshuvah, the law is also thus [ibid.]; rather, this is the way of the matter, that when he performs teshuvah, he will obey the law and pay each and every one.

Behold, if one claimed against his fellow and said, "You sold to me with a kinyan," and he says, "I did not sell," and there is a monetary claim between them, such as where the buyer says, "I gave you the money," or where he says that the purchase is now worth more [it appears to me], or where even the seller admits that he sold to him but the buyer says, "I gave you the money," and he says, "You did not give," or where the seller says that he only received part of the money, or where there is a denial between them regarding the purchase, where the buyer says, "I bought from you for a maneh," and he says, "For a maneh and ten," or where the buyer claims, "I gave money and have not yet performed meshikhah on the purchase and I have now found a defect in it," or "I performed meshikhah on it but did not see all of it at the time of the meshikhah and now a defect is found in it," and the seller says, "You already performed meshikhah and saw and were satisfied," or where one of them says, "There was a condition between us and the condition was not fulfilled," and the second denies it—in all these claims and their like, the burden of proof is upon the one who seeks to extract from his fellow. And if the one seeking to extract did not bring proof, the one in possession shall swear a shevuat hesset. And in a claim that contains a partial admission, or where there is one witness to contradict him, he swears a shevuat haTorah as with all claims. And the beit din must see who is now the one in possession and who is the one seeking to extract, for the oath is for the one in possession to swear and be exempt, and he can reverse it upon the one opposite him, but in a shevuat de-oraita he cannot reverse it, as I wrote in siman 87.

Our teacher, the Rema, wrote that there is one who wrote that one who says, "I sold a field and I do not know to whom," and one came and said, "I am the buyer," he is believed. Thus far his words. And some say that the seller can administer an oath to him [Levush], and even though one does not swear on a claim of uncertainty, nevertheless, when one comes to extract [property], the possessor can administer an oath to him even on a claim of uncertainty [Sma]. And some say that there is no place for this oath, since the seller admits that it is not his, and for this reason there is now no one to deny him; why should he swear? Would he not say to the seller, "You are not my opposing party"? And if it is because perhaps another will come later and say that you sold it to him, let the law then pierce the mountain [Taz]. And many disagree with the essence of this law and hold that he is not believed without proof, and so it is in the Yerushalmi, chapter 3 of Kiddushin, halacha 7 [Shach and the Gra]. And there is one who wished to distinguish between whether he knows which field he sold and whether he does not know, but it is not so [and see Yerushalmi Yevamot chapter 2 halacha 11, and examine it closely]. And if he has one witness, he is certainly believed, as is proven in Even HaEzer siman 37; see there.