Siman 226

Reuven who sold a field to Shimon, even without achrayut, and Levi, a creditor of Reuven, came to remove it from Shimon—if Reuven wishes to stand in judgment with Levi, he may stand, and Levi cannot say, "What have I to do with you, for behold, you have no achrayut?" For Reuven can answer him: "Even though I sold it without achrayut, nevertheless, I do not wish for Shimon to have a grievance against me because he lost on my account." And one should not ask what practical difference there is in this, for behold, whatever Reuven can claim, Shimon can claim; nevertheless, sometimes when Shimon is not a man of words, it is good for him when Reuven stands with Levi in judgment. And sometimes there is a practical difference even in the essence of the law, such as if Reuven made this field an apoteiki for him, and it is not within Shimon's power to remove him with money, but Reuven himself can remove him with money, as is written in siman 115. And there is further practical difference, such as if Reuven has a debt to calculate with him against the debt, or if he can say to him, "Swear to me that I have not paid you" [Rashi Ketubot 92b]. And even though Shimon also has an oath against him, as one who comes to collect from encumbered properties, however, if Shimon waived this oath for him, there is a practical difference in this [Tosafot]. And so too, if Shimon said, "I have no witnesses or proof," and afterwards he found them, such that it is no longer within his power to bring them, but Reuven can bring them [ibid.]. But to compel Reuven to stand with him in judgment is not within one's power [Nimukei Yosef, first chapter of Bava Metzia]. But if he gave him the field as a gift and did not specify achrayut in the deed of gift, he cannot claim on his behalf, for there is no grievance here, as he did not lose money through him. Nevertheless, Shimon can appoint Reuven as a morisheh on his behalf according to what is written in siman 124, that even the defendant can appoint a morisheh in this time; see there [it appears to me].

Reuven who sold a field to Shimon explicitly without achrayut, and then he himself returned and purchased it from Shimon with achrayut, and a creditor of Reuven came to seize it from him—Reuven cannot return to Shimon. For even though initially when it was with Shimon, if Reuven's creditor had collected it from him, he would not have been able to return to Reuven, we do not say that now as well we should consider it as if it were in Shimon's hand and they seized it from him and the loss is his, and he should pay Reuven since he sold to Reuven with achrayut. For while it is true that Reuven did not accept achrayut upon himself, nevertheless, achrayut for himself he presumably accepted, so that he should not be the seller and he himself remove it from the buyer. But if a creditor of Yaakov came and seized it from the hand of Reuven—for example, if the field belonged to Yaakov and Reuven inherited it from him, and now a creditor of Yaakov came and seized it—Reuven returns and collects all the money from Shimon, for Yaakov is like another man.

That which we have said, that he is liable for the guarantee of himself, this is regarding a right that he possesses at the time of the sale, as has been explained. However, if a right came to him after this, he may reclaim it from him. For example, if Shimon was indebted to Yaakov, the father of Reuven, and after Reuven sold the field to Shimon, Yaakov died and Reuven inherited the debt, Reuven may seize it from Shimon. And even though he is the seller and he is the one extracting it, this is because it is as if Reuven lent to him after the sale and the lands of Shimon became liened to him, for it is obvious that he may even collect from this field [Sma]. See also in Even HaEzer siman 105.

Apotropasim who sold from the property of orphans where the liability is upon the property of the orphans, as has been written in siman 108, the apotropasim may subsequently collect that same field for their own debt. We do not say: how can the apotropasim be the sellers and the seizers? Since it is not theirs and they are like a beit din. And it is obvious that if a beit din has a debt of their own, they have the ability to collect that field which they sold for some other debt.

One who sells land to his fellow, and after the buyer acquired it through one of the methods by which one acquires, but before he made use of it, challengers emerged against it—he may retract, for you have no greater defect than this, that he has not yet benefited and a challenge emerged. Therefore, it is within his power to void the purchase and receive his money from the seller, and the seller shall litigate with the challengers. And even if it was revealed that the challenge is nothing, it appears that the purchase is void since it was voided at that time. But if the buyer made any use of it after the kinyan, even if he only trod its boundary and mixed it with his adjacent field, he cannot retract and must litigate with the challenger. And specifically if the treading of the boundary was after the kinyan; but if it was before the kinyan, even though the treading of the boundary itself constitutes a kinyan as written in siman 192, nevertheless, so said the Sages: that based on the kinyan alone, the buyer is not obligated to maintain his hold on it when there is a challenge against it, unless he used it a little after the kinyan. But when the usage itself is the kinyan, he may retract [Taz]. And some say that this is specifically when he has not yet given money, but when he has given the money and performed chazakah, there is nothing after this. And even if he has not yet given money, if after the chazakah he walked in the field or on its boundary to see what it requires, he cannot void the sale [Tosafot Bava Kamma 9a and the Rosh] and is obligated to pay the money. And there is no difference in all this between whether he sold it with achrayut or without achrayut [ibid.]. And even with achrayut, the buyer cannot say after he trod the boundary: "Since my achrayut is upon you, why should I wait? I will void the sale now." For the seller can say to him: "When they seize it from you and you have a tirpa from beit din, I will pay you" [ibid.]. And this is specifically when the seller is a man of means, such that it would be within the buyer's power to collect from him if he should need to; but if he is not a man of means, he may retract now and receive his money back so that he does not consume the money and find nothing from which to collect [Kesef Mishneh chapter 19]. Similarly, as long as he has not trod the boundary, even when he purchased without achrayut, the buyer can void the sale even though there was a complete kinyan. For so the Sages estimated the minds of people: that as long as the buyer does not perform some action—or according to the "some say," when he has not yet gone to see what it requires—they can retract when some challenger is found. And this is similar to kinyan sudar, as clarified in siman 195, that they can retract as long as they are occupied with that matter. And such is the law regarding movables when a challenge of theft emerges [it appears to me]. And it is forbidden to sell land or movables to one's fellow that are subject to dispute and litigation until he informs his fellow. Even though he accepts achrayut upon himself, nevertheless, a person does not want to give money and then descend to litigation, to be sued by others and then have to sue the seller.

And all this is regarding a complete protest, where even though the protest has not yet been fully clarified, nevertheless the beit din sees that there is a correct claim regarding the matter of the protest. But if only a mere rumor emerged, even if the purchase was not completely established, the buyer does not have the ability to cancel the purchase because of a mere rumor of words; for if not so, no purchase would ever be established, as who can prevent rumors that have no substance? Nevertheless, before he has taken possession, if he wishes to retract, he may protest it since he has not yet taken possession. And we have already written that when the purchase is cancelled due to the protest, even if the matter is revealed that the protest is void, nevertheless the purchase does not return to its original status and both of them may retract. Our teacher, the Rema, wrote that if a protest came upon the field because the seller was indebted to others, and the seller says that he has receipts for the debts, it is called a protest and the buyer may retract, and he does not need to buy a thing to guard his receipt forever. Thus far his words. For from the outset, a person does not consent to enter into such a purchase that will require constant guarding. And even if he gave a portion of the money for the purchase, the seller must return it to him, for we are witnesses that he did not advance some money to establish part of the purchase and cancel part of it [Sma]. And according to the "there are those who say" in the previous section, when he has not yet given money, if the protest is in a manner that it is capable of being clarified over a duration of time—even though now there is not yet a complete protest, but according to the words of the protester it will be clarified over the duration of time, such as where he says "I have a deed and I will validate it"—we do not command the buyer to pay the money until the matter is clarified, and the beit din gives him time according to their assessment [Taz].