Siman 230

One who says to his fellow, "I am selling you a cellar of wine for *mikpah*"—which is for flavoring foods and putting into cooked dishes, meaning good wine that lasts a long time even when they use it a little at a time—therefore, he must give him wine that is entirely good and fit to last. But if he said, "I am selling you a cellar of wine" without specification, and did not say "for *mikpah*," it does not need to be entirely good; rather, like ordinary wine found among a hundred barrels, ten are *kosesot*. This refers to wine that is not so good, as it has begun to change slightly, for the sages, of blessed memory, established that in ordinary wine there is one in ten that begins to spoil slightly. But the rest must be good wine that is fit for *mikpah* [as is implied in the Gemara, Bava Batra 95]. And if he said to him, "I am selling you *this* cellar of wine," he gives him wine that is sold in a shop, which has begun to sour slightly, for since he said "this," it implies this wine as it is. Nevertheless, if it is not fit to be sold even in a shop, the name "wine" is not upon it at all and the sale is void. And if he said to him, "I am selling you *this* cellar of wine for *mikpah*," its law is like one who sells ordinary wine, where all the wine must be good and ten *kosesot*, for since he said "this," which weakens the quality of the wine, and said "for *mikpah*," which improves the quality of the wine, consequently its law is like ordinary wine. And if he said, "I am selling you this cellar," and did not mention wine at all, even if it is entirely vinegar, it is his. And if he said, "I am selling you this cellar for *mikpah*," its law is like ordinary wine, for since he mentioned *mikpah*, perforce he meant wine and good wine, and by saying "this," he accepts ten *kosesot* per hundred as has been written. And the same law applies if the buyer said to him that he is buying it to drink a little at a time; it is as if he said to him "for *mikpah*." And even though in many barrels, when he sells him ordinary wine, he accepts upon himself ten *kosesot*, yet when he sold him one barrel, even though he said to him "a barrel of wine" and did not say "for *mikpah*," nevertheless he must give him wine that is entirely good and fit for a cooked dish, for it is impossible for a tenth part of a barrel to be bad, and of necessity it must be entirely good. But if he said to him, "I am selling you *this* barrel of wine," he gives him wine that is sold in a shop, as with many barrels. And similarly, with "this barrel" without saying "of wine," even if it is entirely vinegar, it is his.

One who sells wine to his fellow and the buyer placed it into his own jars, even if it turned sour immediately, the seller is not liable for the responsibility, even if he said to him "for a dish," for he can say to him: "Your vessels caused it to turn sour." And even if his vessels were good and new and he did not transport the wine from place to place, nevertheless he can say: "Your vessels caused it." And in this, the law of wine is different from all other merchandise, for it is possible that because they poured it from vessel to vessel it was ruined. And it appears to me that if the buyer has not yet given the money, he does not need to give it, for that which the sages, of blessed memory, said—that it could be ruined—this is not a certainty but rather that it is possible to be so; therefore, the buyer does not have the power to extract from the seller, but also the seller cannot extract from the buyer. And so too, if he sold it to him on this condition, that he would pour it into his vessels, the loss is upon the seller. And so too, if it is known that his wine turns sour and he said to him "for a dish," this is a mistaken transaction. But if he did not say to him "for a dish," the seller can say to him: "You should have drunk it immediately over the course of a few days, as is customary to drink a barrel over such a duration of time." Therefore, if it turned sour immediately or within a few days, the loss is upon the seller [Sma].

If he sold him wine and the wine remained in the vessels of the seller and it turned into vinegar: if he said to him, "I need it for a condiment" or "to drink it little by little," for its law is like that of a condiment, he returns the wine to the seller and says to him, "Here is your wine and your jug." But if he did not say to him "for a condiment" nor "to drink it little by little," he cannot return it, for the seller says to him, "Why did you not drink it? You should not have delayed it until it turned into vinegar." And this is specifically when he delayed it longer than the typical amount of time to drink such a quantity of wine during this duration; but otherwise, the loss is upon the seller.

This law applies only to wine, but regarding other beverages such as beer, it is not a valid claim to say "you should have drunk it." Therefore, one who sells a barrel of beer to his fellow and it soured, and the barrel belongs to the seller: if it soured within the first three days, it is in the domain of the seller, and he must return the money. From this point forward, it is in the domain of the buyer. For when it sours within three days, it is a clear sign that it spoiled in the house of the seller, because in less than three days it cannot sour. Even if it still tasted like beer, nevertheless it is a mistaken purchase, for one does not pay money for such beer; therefore the seller must return the money. After three days the matter is a doubt, and it seems to me that if he has not yet given the money, he need not give it, according to the law of all doubts. And why is the law of wine different from other beverages? Because it is a tradition in the hands of our teachers, of blessed memory, that wine depends on the fortune of the owners [Bava Batra 98a], and so said the prophet Habakkuk: "Moreover, wine is treacherous; the haughty man does not stay at home." Therefore, when the buyer delayed the wine for a long time, the seller can say "your fortune caused it." But when he did not delay it much, perforce the loss is upon the seller, even though it is possible that the buyer's fortune caused it, for he sold it to him on this condition: that he should drink it in the manner of those who drink. But regarding other beverages, the fortune of the person is not relevant. However, the change from vessel to vessel is relevant to all beverages. And although the Tur wrote this regarding beer, it is not specifically beer, for the same applies to all other beverages except for wine. And that which we wrote, that after three days if he has not yet given the money he need not give it, this is when the buyer did not taste it; but if he tasted it and it was good, he must give it, for this is not a doubt [Tur]. But within three days, even when he tasted it, the seller returns the money to him, for certainly he did not taste it well [ibid.]. And the entire difference between wine and beer is only within three days, but after three days even with beer the seller need not return it, as I have written. And although our teacher, the Beit Yosef, wrote in his book Kesef Mishneh in chapter 17 of Mechira, law 3, that the Rambam does not distinguish between beer and wine, there is no necessity to say so; on the contrary, from the wording of the Rambam there it also implies that he distinguishes, and so wrote the Maggid Mishneh [and this is what the Rema innovated in section 10, even though the author already wrote it, as the Sma wondered in subsection 14, to say that no one disagrees on this; and the primary difficulty of the Kesef Mishneh regarding what relevance "delay" has within three days, see there, for according to the Tur one must perforce say so; and delve into this].

One who sells a barrel of wine to his fellow in order to sell it little by little, and it soured at its half or at its third, it returns to the seller. But if the buyer changed its tap-hole, or if the market day arrived and he delayed and did not sell, it is in the domain of the buyer. And it appears to me that a change in the tap-hole is only a change regarding wine and not regarding other liquids, because with wine, a slight change causes it to spoil. And the Rambam, of blessed memory, wrote there: And so too, one who receives a barrel of wine from his fellow in order to bring it to a certain place to sell it there, and before he arrived there the wine depreciated in value or it soured, behold this is in the domain of the seller because the barrel and the wine are his. Thus far his words. And even though anyone who receives for half-profit, the loss and the gain fall upon both of them, nevertheless, in this case where he did not give him permission except to bring it in his barrel to a certain place, the partnership does not begin until the barrel arrives at that certain place, and before it arrived at that place, it is in the domain of the giver. And this is regarding receiving for half-profit. And regarding a sale in such a case where the buyer said, "My intention is to bring it to a certain place," and he did not give money yet, and before it arrived there it depreciated, the Tur wrote in the name of the Ri that the transaction stands. And there are those who disagree, for since he did not give money yet, and he bought it to bring to that place, and before the merchandise arrived there it depreciated, he can return it, for presumably his intention was on the condition that he would find the price there expensive according to the norm. And the Tur did not decide on this. And we have already explained in siman 207, section 14, that even those who disagree with the Ri, this is only when the buyer stipulated that he would not give the money until the merchandise arrives at that certain place, for it is evident that his intention was that only then would the transaction be established and not before. And the opinion of the Rambam in this was not clarified [the Maggid Mishneh]. And in any event, even regarding one who receives an iska, one should not learn from this for all recipients of iskas, for certainly in every iska the partnership begins immediately; it is only here, where he did not authorize him except to bring it in his barrel to a certain place, that the iska does not begin before it arrived there. And I saw one of the great ones who wondered at this law, and therefore explained that it deals with a case where some cause occurred in the world such that it depreciated in all places, where there is an assessment that he did not receive it with this in mind; but when it depreciated only in that place, the loss is upon both of them. And through this he went out to judge a new matter: that according to those who disagree in the Tur with the Ri, even in a complete sale, if a change occurred in the world regarding the transaction due to war or another cause, he can retract. And this is not clear to me at all, for here the matter is simple as we have explained, for so indicates the wording of the Rambam who wrote "because the barrel and the wine are his." And also in a complete sale, even according to those who disagree in the Tur, the intention is as I wrote in siman 207, see there [it appears to me].

One who says to his fellow, "I am selling you cooked or spiced wine," is obligated to ensure for him that the wine remains good until Shavuot, for from then on the wine spoils due to the heat. If he said to him, "I am selling you old wine," he gives him from that of the previous year. And if he said to him, "aged wine," he gives him from that of three years, meaning from wine that grew two years ago, and this current year they are in is the third [Sma]. And even though in the Torah it is written regarding the Sabbatical year, "And you shall eat of the old grain," and it is written, "And I will command My blessing... for the three years," implying that "old" is three years, nevertheless, in the language of people it refers to the previous year. Furthermore, the Torah itself explained afterwards in another passage that this is "very old," as it is written, "And you shall eat old, very old," and in the general context it refers back to the previous passage. And with aged wine, he is obligated to ensure for him wine that will not sour until the festival of Sukkot of the third year, which is the time of the vintage; for since it endured for three years, it can also endure during the time of heat. And there are those who say that all of this is specifically when it remains in the vessels of the seller, but if the buyer poured it into his own vessels, the seller can say to him, "Your vessels caused it." And there are those who disagree, for since he said to him "old" or "aged," it must endure even in the vessels of the buyer.

Reuven claims against Shimon: "You sold me wine under the presumption that it was good wine," and Shimon says: "What you tasted, you take"—the law is with the seller. Thus wrote our teacher, the Rema, and he did not clarify his words as to whether the buyer admits that he tasted it or does not admit it. The source of the law is from the Mordechai, and there it is explained that even if he does not admit that he tasted it, we say that presumably he tasted it. The Sma similarly explained the words of our teacher, the Rema. However, it appears to me that he intentionally omitted this, because of what he wrote in siman 228, section 8, that it is not in all places the custom to taste beforehand; consequently, in a place where they do not practice tasting and the buyer says that he did not taste it, the seller must swear that he tasted it beforehand. Our teacher, the Rema, wrote that if the buyer says that afterwards he mixed it after he tasted it, and the seller denies it, he shall swear and be exempt. And it appears to me that when he has not yet given the money, the buyer shall swear and return the wine to him, for every oath is upon the one in possession, that he shall swear and be exempt. And this is a simple matter, that this oath can be reversed upon the other party.

All the laws that have been explained apply in a place where there is no known custom, but in a place where there is a custom, everything follows the custom of the land, for custom is a great principle in business dealings, as has been written several times.