Siman 225

The obligation of responsibility in a loan has already been explained in siman 39, and similarly, a seller is obligated in responsibility when the land is seized from the buyer due to him, such as when his creditor seized it for his debt. This is so even when the responsibility was not written in the deed, for it is a settled halakha that responsibility is a scribal error, as a person does not throw away money for nothing. There are three types of responsibility in a sale, one higher than the other: the lowest of them all is responsibility for himself, that the seller himself shall not take it from the buyer, and it will be explained in siman 226; higher than that is responsibility due to him, where the creditor of the seller comes and seizes it for his debt; and higher than that is general responsibility, where a victim of robbery comes and seizes it. In all types of responsibility he is obligated even if unspecified. However, when he specified in the deed responsibility for himself, he is not obligated in those higher than it, for it appears explicitly that since he specified this type of responsibility, he did not obligate himself further. And if he specified responsibility for a creditor, all the more so is he obligated in responsibility for himself, but he is not obligated in general responsibility. And if he specified general responsibility, he is obligated in all of them. And there are those who say that when he obligated himself in responsibility for a creditor, all the more so is he obligated in responsibility for robbery when he himself robbed, but in a case where he purchased from a robber, he is not obligated in responsibility. And see what I wrote in section 5.

Therefore, anyone who sells land, or a slave, or movable property, he is liable for their guarantee. How so? If one comes and removes the purchase from the hand of the buyer on account of the seller, the buyer returns and takes his money from the seller, and he also collects half of the improvement as I wrote in siman 115. And such is the law in every sale, even if the buyer did not specify this matter at the time of the acquisition; and even if he sold the land with a deed and did not mention a guarantee in it, he is liable, for a guarantee is a scribal error. And know that regarding land, all types of guarantee that we mentioned apply, but regarding movable property, there is only a guarantee of theft, for a creditor does not seize movable property from buyers who bought from the debtor, even if he subordinated movable property to him incidental to land, and even if he made them an apothiki, as I wrote in siman 60. And regarding slaves, he only collects with an apothiki, as I wrote in siman 117. And know that also regarding exchange, we say a guarantee is a scribal error, not like the one who disagrees on this [Ktzot HaChoshen siman 116].

In what case are these words said, that the seller is liable for indemnity? When the seizer removed the purchase from the hand of the buyer in a beit din, such as when the purchase was movable property and it was stolen or robbed, or when the purchase was stolen land, or when a creditor of the seller came and seized it from the buyer, and all of this was clarified and performed according to a beit din. However, if an extortionist came and removed the purchase from the buyer, and even by the law of a star-worshipping ruler or in the courts of the gentiles, the seller is not liable for indemnity. And even if the extortionist claims that this purchase was stolen from him, as long as he does not clarify this through kosher witnesses, he is not believed, and the presumption is that he is lying, and the ill fortune of the buyer caused it. And even if he does not take the entire purchase and leaves a portion of it, such that it is apparent that he is not taking that which is not his, he is not believed, and we say that he is acting with cunning so that they will believe him that he is taking his own. And similarly, when the buyer gave it to the creditor not according to a beit din, the seller does not need to pay him [Sma]. However, a buyer who gave it to the victim of robbery seizes from the seller because he can go to a beit din and clarify [Netivot HaMishpat]. But for the creditor, the beit din will not give a document of seizure afterward, since he already collected not according to their word.

And that which we said, that the seller is not liable for the responsibility of accidents, in what case does this apply? When the buyer did not make a condition with him. However, if he made a condition with him that for any accident that arises regarding this land the seller is obligated to pay, even if an extortionist comes and seizes it because of the seller, with the claim that the seller stole it from him—even though it is known that it is a lie—nevertheless he is obligated to pay, for any condition in monetary matters is valid. But regarding an accident that is not because of the seller, he is not liable unless he explicitly specified that he obligates himself for every type of accident, even an accident not because of him. And even when he specified "every accident," he is only liable for a common accident; but for an uncommon accident, the seller is not liable to pay, such as if the river that used to irrigate it was cut off, or if the river returned to pass through the field and it became a pool full of water that is not fit for sowing, or if an earthquake came and destroyed it—behold, he is exempt, for these accidents and their like did not enter the mind of the seller at the time he made the condition with him to be liable for accidents. And the same applies to all monetary conditions: we estimate the intent of the one making the condition regarding what he conditioned. And there was an incident with one who hired sailors to bring sesame seeds to a certain place and made a condition with them that they would be liable for any accident that occurs to them until the sesame seeds reach that certain place, and the river in which they were transporting the sesame seeds was cut off; and the sages said that this is an uncommon accident, and they are not obligated to transport the sesame seeds upon an animal to that place [Gittin 73a]. And so too in any similar case, unless he explicitly specified that he obligates himself even for an uncommon accident, for then he is liable for whatever occurs. And the accident of extortionists was common in ancient days.

If the seller stipulated explicitly that he shall bear no responsibility even if it becomes known that it was stolen while in his possession and the victim of the theft seized it from the hand of the buyer, the seller is not liable. And it goes without saying that if a creditor came and seized it that he returns nothing to him, for any stipulation in matters of money is valid, as he says to him: "You reasoned and accepted." [The wording of the Rambam, and a proof for the "some say" in section 1; and it appears to me that in the Nimukei Yosef in the first chapter of Bava Metzia regarding the types of responsibility there is a scribal error, and examine it closely]:

One who sells a wine cellar to his fellow and they stipulated between them that there shall be no responsibility upon the seller except if the barrel breaks or is spilled alone, and there shall be no responsibility upon the buyer except regarding the taste alone, such as if it sours, and afterwards an accident of nisukh occurred, it is upon the seller. For one may infer from the details that since the seller accepted upon himself responsibility from external factors that are not due to the wine itself, and the buyer accepted upon himself responsibility from the spoilage of the wine itself, consequently any accident that is not from the essence of the wine, like nisukh, is like an external accident and the seller is liable for it. Nevertheless, if before the accident was destined to come, such as if they knew that extortionists were coming and the seller warned him to hide his wine and he did not hide it, the seller is not liable, for he caused the loss to himself. And so too anything similar to this; he can only say to the seller that he should exert himself and rescue the money from the extortionist since you obligated yourself in any event for this accident [Taz]. And it appears that specifically when an accident of nisukh is common in that place like breakage, for if it is not common, he is exempt in any case, as I wrote in section 4 [and that which the Tur wrote "not common" is not literal, see there, and so it appears in the Levush].