Siman 235

By Torah law, a minor's purchase is not a purchase and his sale is not a sale. However, the sages enacted for an orphaned minor who has no apotropus that his purchase and sale of movables shall be valid, but not of lands. They enacted this for the sake of his livelihood, for if not so, he would find no one who would sell him anything or who would purchase from him, since he could retract, and he would have nothing to eat. But in lands, his actions are nothing, for land requires extra understanding, and they feared he would be greatly defrauded; furthermore, for the sake of his livelihood, movables alone are sufficient. And there are those who say that only up to the amount of his livelihood are his actions valid in movables and no more, but many disagree with this, for it is impossible to divide between the amount of his livelihood and more, and who would provide the fixed measure for this? Furthermore, if so, the fear returns to its place, for the one purchasing from him or selling to him would fear lest this is more than the amount of his livelihood. And so our teachers, the authors of the Shulchan Aruch, ruled without qualification.

And specifically a minor who has understanding and knows a bit regarding the nature of business transactions; therefore, a minor less than six years old, his actions are nothing as he has no understanding at all. And from six years until he grows up, we examine him: if he understands and knows a bit regarding the nature of business transactions, his purchase is a purchase and his sale is a sale, and also his gift is valid, for if [the recipient] had not done him a favor, he would not have given him a gift, and this too is included in "for the sake of his livelihood," so that they should not distance themselves from doing him a favor. Therefore, whether it is a large gift or a small one, whether it is a gift of a healthy person or a gift of a shechiv mera, his actions are valid, for it is impossible to make a distinction in this; and when he gave a large gift, presumably [the recipient] did him a great favor. And there are those who say that this requirement for examination is when he is less than ten years old, but for more [than ten], he does not require examination, for presumably he possesses some understanding, and as long as it is not known that he has no understanding at all, his actions are valid. And our teacher, the Rema, ruled accordingly, and the proof for this is from that which we learned in a Mishnah: "a ten-year-old for Mishnah," which shows that he has the intelligence to understand the words of the Mishnayot.

Regarding land, he may not sell or give until he becomes an adult, which is a male minor of thirteen years and one day and a female minor of twelve years and one day, and when they have produced two hairs, for then they become adults. Even if we do not know with certainty that they produced signs, we say there is a legal presumption that once they have reached the requisite years, they have presumably produced signs, unless it is known that they did not produce them. And although for chalitzah we do not rely on years alone and require knowledge that they produced signs, as written in Even HaEzer siman 155, this is only for matters of prohibition and not for matters of money, for in matters of prohibition they were concerned about rumors [see Tosafot Bava Metzia 20b s.v. issura etc. and "one could further say" etc. and Tosafot Bava Batra 154a s.v. "and furthermore if you say" etc. and "if you say why" etc. and "it can be answered" etc. and examine it well, and see what I wrote in Imrei Lishon siman 18, letter 3]. Prior to these years, it is not only that his sale is nothing regarding land that fell to him through inheritance—for in this case he may not sell until he is twenty years old—but even land that was given to him as a gift or that an apotropus bought for him previously while he had an apotropus, he cannot sell or give. Even if he gave it as a gift of a person facing death, whose words are like those written and delivered, it is nothing. This is so even if he understands well the nature of business, for regarding land the sages did not grant a minor any power. However, as long as the minor is pleased with what he did and his relatives or the beit din did not nullify his actions, and the buyer consumed the produce of the land, he does not need to pay for the produce he consumed until the minor's retraction or until his relatives or the beit din take the land from his hand, for he waived the produce he consumed. Even though a minor is not capable of waiving, nevertheless, that which he waived is like a gift, and he can give produce as a gift since they are movables, and his retraction is not effective just as with movables [the Gra]. Some say that this is specifically when the buyer has not yet given money or when the minor gave it to him as a gift; but in a sale, when the buyer has already given the money, when they return his money to him, they deduct the produce he consumed. For if not so, since the sale is void, he has consumed on account of his money, and it would be ribbit, as will be explained regarding one less than twenty years old [Netivot HaMishpat]. There is one who wished to say that land which the minor bought for himself—since his acquisition is nothing because he can retract—if he sold this land, his law is like movables. But it is not so, for regarding land the sages did not grant him any power [ibid.]. Until when the minor can retract was not explained in the Gemara or the poskiim. Therefore, some say that only until he becomes an adult can he retract, or his relatives and the beit din can nullify the sale; but after he becomes an adult and remained silent for a short time, he has established his sale through his own action during the time of his adulthood and can no longer retract, as will be explained regarding a twenty-year-old [Ketzot HaChoshen]. But in truth, there is no proof from there, for one less than twenty years old, according to the Torah his sale is a sale, but the sages did not allow him to sell; therefore, when he reached twenty and did not protest, he properly established the sale. But regarding a minor whose actions are nothing, by what would the sale be established when he reached the years of adulthood and did not protest? [And proof is from Tosafot and the Rosh, Ketubot 11, and examine it well]. The presumption of a shop has the law of land [the Shach], and so too all types of presumptions are like land, and the minor cannot sell them.

A promissory note that a minor inherited has the status of movable property. And even though it requires writing and delivery, and how can witnesses sign on a document of a minor? This applies to all documents that require witnesses, but a document for the sale of a promissory note, where his own writing suffices when he writes "I have sold you my promissory note," since this involves the delivery of the promissory note itself, the handwriting of the minor himself is sufficient [Netivot HaMishpat], and therefore the witnesses may also sign upon it.

Some say that since his sale of movable property is a rabbinic enactment, therefore, if in this sale the minor acted improperly—for example, if a small amount of property remained from his father and there are minor daughters, where the son does not inherit but rather the daughters are sustained from them, and by the enactment of the Geonim the law is the same even regarding movable property, as I wrote in Even HaEzer siman 112, and there it was explained that if the males preceded them and sold the property, what they sold is sold—if the minor sold, his sale is nothing. For why would the sages give him power in a matter where he acted improperly to nullify the enactment of our sages, of blessed memory, regarding the sustenance of the daughters? And similarly, in the case of one who sells a promissory note to his fellow and dies, where we maintain that even the heir can forgive the debt as I wrote in siman 66, if the minor forgave it, his forgiveness is nothing, for he causes damage to the buyer [Ktzot HaChoshen], and similarly in other matters.

The Rambam, of blessed memory, wrote in chapter 29: A minor who understands the nature of business and has no guardian, who bought or sold movable property and erred, his law is like the law of an adult; less than a sixth is forgiven, a sixth—he has acquired but returns the overcharge, more than a sixth—the transaction is void. Thus far his words. And even though minors are not capable of forgiveness, nevertheless they were forced to enact thus, for if not so, people would not want to buy from them or sell to them, as it is impossible to be exact such that there is no slight overcharge, and this is like a declaration of ownerless property by a beit din which they enacted for their benefit.

The purchase and sale of a katan regarding metaltelin is not established except through meshikhah, when he performed meshikhah or they performed meshikhah from him. However, if he gave money for the purchase and retracted, he does not receive "Mi She-Para," for he is not of such status. But regarding the one opposite him, if he retracted, he receives "Mi She-Para," for it is no worse than if he retracted a purchase with a gadol. However, in a place where money acquires completely, as I wrote in siman 198 and 199, that sometimes money effects a complete kinyan, it also acquires for a katan in such a case [Netivot HaMishpat]. And similarly, in a place where according to the custom of the merchants they acquire with money as a complete kinyan, as I wrote in siman 201 [it appears to me]. But in a place where there is no kinyan of money, others who purchase from a katan have no kinyan besides meshikhah, for kinyan sudar is not effective with a katan. The Rambam, of blessed memory, explained the reason is because every kinyan is like a deed, and therefore the sages said an unspecified kinyan is intended for writing, and witnesses do not sign on a deed of a katan, whether he is a seller or a buyer. And similarly, if the metaltelin are resting in the courtyard of the katan, it is not effective to rent the domain from him and acquire the metaltelin, for rental is like a sale, and just as he cannot sell land, so too he cannot rent it out. And similarly, a katan who purchased from others has only the kinyan of meshikhah, for kinyan sudar is not effective for him as I wrote. And that he should rent the place is not effective for two reasons: one, from the reason that was explained, that he has no kinyan in land and rental is like a sale and he can retract; and furthermore, because the courtyard of a katan does not acquire for him, for a courtyard is derived from the law of agency, as I wrote in siman 243, and just as he has no agency, so too he has no courtyard, and the kinyan or rental of the place should not be superior to his courtyard. Therefore, the Rambam, of blessed memory, wrote that a ketanah, whose courtyard was derived from her hand, as I wrote there, and she has a courtyard just as she has a hand, therefore the ketanah can acquire metaltelin from others if they performed a kinyan from her hand or by renting a place. And so wrote the Tur and the Shulchan Arukh in section 6. And they questioned this, that in any case regarding a kinyan, there is no reason to distinguish between a katan and a ketanah [Shach]. And furthermore, in land, buying and selling is not effective for either a katan or a ketanah, for they only instituted it regarding metaltelin. However, the intention of our teachers is this: for the entire essence of why they instituted power for ketanim in metaltelin is for the sake of his livelihood, as I wrote. And according to this, they should have instituted that all kinyanim that apply to gedolim should be effective. And what relevance is there to say that his kinyan and his courtyard are nothing? Behold, even his primary kinyan is nothing and is a rabbinic enactment, and what distinction is there between this enactment and the enactment of the kinyan? However, the primary reason is that the sages did not want to institute anything but the kinyan of meshikhah so that they would separate from one another, for when they are bound together they will come to dispute since his mind is not complete. But nevertheless, there is no proper reason to uphold the kinyan of meshikhah and nullify other kinyanim. Therefore, regarding a katan who has no courtyard by law, there is a reason to say that the kinyan of a courtyard is not effective, and therefore they also nullified kinyan sudar. But a ketanah who has a courtyard, it is impossible to nullify this kinyan, and therefore they left for her also kinyan sudar, since there must be a kinyan so that they do not separate from one another. But others who purchased from her hand have no kinyan besides meshikhah for the reasons we explained, and therefore they also do not have kinyan sudar. However, there is another reason why there is no kinyan for a katan besides meshikhah, because a katan is not a person of understanding to comprehend the ways of kinyanim, and only with meshikhah does he understand that he pulled the object to him or they pulled it from him [Ran, chapter 6 of Gittin]. And according to this, there is no distinction between a katan and a ketanah. And for the law, we have only the words of the Rambam and the Tur and our teachers, the authors of the Shulchan Arukh [it appears to me].

The Rambam, of blessed memory, wrote [ibid.]: It appears to me that a minor who purchased land and gave money and performed chazakah in the land, it remains in his possession, because one may acquire a benefit for a person in his absence. Thus far his words. And specifically when he gave money, for if not so, the mind of the seller is not resolved, as it is the way of the minor to retract [Sma]. And even though the seller cannot retract due to the principle of acquisition, nevertheless the minor can retract, for since he retracts, this is not a benefit [ibid.]. And according to this, also regarding movable property that they sold to him and he performed meshikhah, it is an acquisition from the Torah as long as the minor did not retract for the reason that has been explained. And specifically when the seller sells to him in this manner, that the minor shall have the ability to retract and he shall not retract, for then he acquires by way of acquisition of benefit. And that which the sages required to institute that he should acquire was when the seller transfers ownership to him in a manner that even the minor shall not retract, for then it is not a benefit for him [Netivot HaMishpat]. And there are some of our teachers who say that when another's mind transfers ownership to him, he acquires from the Torah even without the reason of acquisition of benefit, as I wrote in siman 243. And the Rambam holds that this is not due to the minor's power of acquisition, but rather due to acquisition of benefit [Ktzot HaChoshen]. And it appears to me that regarding a sale, according to all our teachers, the principle of another's mind transferring ownership is not effective, for this is only regarding a gift; but regarding a sale where the minor can retract, certainly the seller does not transfer ownership to him ordinarily in such a case where he cannot retract and the minor can retract, unless he explicitly stated so. Therefore, the Rambam required the reason of acquisition of benefit. And on the contrary, according to some of our teachers who hold that acquisition of benefit is due to the principle of agency, behold, there is no acquisition of benefit for a minor from the Torah, and perforce the Rambam holds that acquisition of benefit is not due to the principle of agency [it appears to me]. And in siman 243 more was explained regarding this [see Tosafot Ketubot 11a and Gittin 39a and the beginning of the eighth chapter of Sanhedrin and the Ran at the beginning of the second chapter of Kiddushin and Nekudot HaKesef Yoreh Deah siman 305].

There are some among the great authorities who investigated whether a rabbinic kinyan is effective even for Torah law—for example, money or an object where the kinyan is only rabbinic, and one betrothed a woman with it, whether these are complete kiddushin from the Torah such that if another man came and betrothed her, she would not require a get from him, or not. There are many proofs for this, that it becomes a complete kinyan from the Torah, for it is no worse than "the property of the beit din is ownerless," which is from the Torah [as is evident in Gittin 36b from the comparison to inheritance], and even while the thing they declared ownerless is still in the hand of the one whose property was declared ownerless [Rivash siman 399]. There is one who says that granted it becomes ownerless from the Torah, but it is not a kinyan from the Torah; for certainly when an adult acquires it, he acquires it from the ownerless state, but if a minor acquires it, he does not have the capacity to acquire even from that which is ownerless [Netivot HaMishpat]. There are those who make further distinctions in this matter, but none of them have been clarified to us. Our teacher, the Beit Yosef, in his great work on Even HaEzer siman 28, wrote simply that it is effective, and such is the primary halacha. This is also explained in the Yerushalmi, chapter 5 of Gittin, halacha 9, and in Ma'aser Sheni chapter 4 halacha 3 [where Rav Shmuel bar Rav Yitzchak interpreted it according to the system of the "pe'otot," as we learned: the purchase of "pe'otot" is a valid purchase etc., and it refers to Ma'aser Sheni and from a verse, see there and examine it carefully].

Everything that has been explained, that a katan has authority regarding movables, in what case is this said? When he does not have an apotropus. But when he has one, his actions are nothing except with the knowledge of the apotropus. And if the apotropus desired to uphold his purchase or his sale, he upholds it, and if he desired to nullify it, he nullifies it. For since the enactment was for the sake of his livelihood, and when he has an apotropus, behold he watches over his sustenance. And the same law applies if they are supported by a householder, whose law is like an apotropus, as I wrote in siman 290, their actions are nothing, and even regarding a gift. And this is not like the one who wished to say that their gift is a gift even when there is an apotropus, because the apotropus is not permitted to give gifts. And it is not so, for in any case, if the apotropus sees that it is necessary to give a gift to a man, he will command the katan to give it and he will uphold it, and if the gift is merely superfluous, why would the sages give him this power to cause a loss to himself? And so is the primary ruling.

Let it not be difficult in your eyes as to how you find this law, since this is only when he has no apotropus, and behold the beit din are obligated to appoint an apotropus for minor orphans or they themselves should be apotropus, as written there. For it can be said, for example, that the beit din did not find in their place a trustworthy person, and the beit din themselves are not in the location of the minors and it is impossible for them to supervise their property; or, for example, that the minor is not an orphan and his father went to distant lands and did not appoint an apotropus, for then the beit din are not obligated to appoint an apotropus for them, as written in siman 285. And for such minors, this enactment was necessary, and so too for anything similar to this.

Minors who have reached majority and produced two hairs—the boy after thirteen years and the girl after twelve years—even if they have an apotropus appointed by their father or the beit din, their purchase is a purchase and their sale is a sale. And even if the father's will was not to hand over [the property] to them nor to the one who purchased from them until a certain time, and the apotropus and the beit din are obligated to fulfill the words of the deceased, nevertheless, their purchase and sale are valid immediately. When the time of the will to hand over to them arrives, the purchase shall take effect retroactively and they shall be handed over to the purchaser. Furthermore, even if the purchaser seized them immediately, they are not removed from his hand, for the property is theirs and what they have done is done, since they have reached the years of majority. This is unless the will was not to give to them at all by way of inheritance, but rather to give them such and such per week and what remains after them to give to so-and-so, for then they have no right at all in all the property, as will be explained in siman 248 and 253; see there.

Even though a minor who has reached majority is in his own domain, nevertheless there is a distinction between land and movable property. For in movable property, even if he does not understand the nature of business, his purchase is a purchase, his sale is a sale, and his gift is a gift, whether regarding movable property left to him by his testator or whether he acquired it himself or it was given to him as a gift. But in land, his actions are not valid until he understands well the nature of business after reaching majority, because land requires much expertise and there is much overreaching in it; the sages feared lest he be greatly overreached. And even if he understands business well such that his actions are valid also in land, in what case does this apply? Regarding his own land that he acquired himself or through a guardian, or that was given to him as a gift of a healthy person. But land that he inherited, or that was given to him as a gift of a person facing death, which has the law of an inheritance, his sale is not a sale until he is twenty full years old and brings two hairs. But before twenty, even if he brought hairs and understands the nature of business, he may not sell. And the reason is that they feared because his mind has not yet settled in the ways of the world, and the mind is easily inclined toward money and he will sell it cheaply. But in land that he acquired, they did not fear this, for behold we see that the land is dear to him since he acquired it, and also regarding a gift, he presumably did a favor for the giver and exerted effort until it was given to him, so they did not fear cheapening. However, his gift of land when he is over thirteen years old and has brought two hairs—his gift is valid, whether he gave it as a gift of a healthy person or as a gift of a person facing death, for if he did not derive great pleasure he would not have given it as a gift, and also it is an uncommon matter, so the sages did not protest against it so that his gift would not be valid, in order that his words be heard. And when he is twenty full years old and has brought two hairs, behold they are in their own domain for all matters, and even if he does not understand well the nature of business, as long as he is not a complete fool; and this is not like those who disagree on this, who hold that even at twenty years he must understand well the nature of business.

All these matters are stated when they themselves are selling, but a beit din always sells the land of orphans that they inherited from their father to pay their father's debts and the like, as has been written in siman 109 and 110. The Rambam wrote: A beit din that sold or purchased among the property of orphans, whether land or movable property, and similarly guardians, whether the beit din appointed them or the father of the orphans appointed them, their purchase is a purchase and their sale is a sale. However, their gift is nothing, for a person does not give as a gift something that is not his. In siman 290 it will be explained for which matters a guardian is permitted to sell. Also, a beit din does not have the power to give a gift from the property of orphans unless they see a necessity for the benefit of the orphans, in which case they have the ability to waive their money, as has been written in siman 12. A guardian does not have even this power unless he acts with the permission of a beit din [it appears to me].

One younger than twenty who sold the land of his testator may return and remove it from the hand of the purchasers, whether before twenty or after twenty, immediately; and he removes from him all the produce he consumed, for if not so, since the sale is void and the money returns, it would appear that he consumed the produce in exchange for his money and it would be ribbit. Therefore, if he has not yet given money, he does not need to pay for the produce. And there is no "waiver in error" here, for in this case it is a waiver as I wrote in section 3. And if he incurred expenses or planted and sowed, they appraise for him like one who "descended with permission," which will be explained in siman 375 [Netivot HaMishpat], and he returns the remainder to him. And if when he became twenty he did not protest immediately, he can no longer protest even if he was a minor when he sold; for since he took the money and the purchaser took possession of the land when he was twenty and he did not protest, he has upheld the sale through the chazakah performed in it now. And specifically when he already received the money and also used it afterward; but if he has not yet received the money or did not use it after he became twenty, he may protest and void the sale [Sma]. And regarding movables, which require meshikhah, the subsequent use is not effective according to what I wrote at the end of section 3, for when he grew up he did not pull it from his domain to his domain [it appears to me].

The Tur wrote in section 18: Regarding a minor who borrowed from others, the Ramah wrote that he is obligated to pay when he grows up, and the Ri wrote that he is not obligated to pay, for if they were to collect from him when he grows up, he would squander all his money during his minority. And my father, the Rosh, made a distinction in the matter and wrote that if it is known that he borrowed for the purpose of his sustenance, they collect from him, just as with toddlers whose purchase is a purchase and whose sale is a sale regarding movables for the sake of their livelihood, so too his loan is a loan and they collect from him so that he will find someone to lend to him in his time of need. But if it is not known that he borrowed for the purpose of his sustenance, his action is nothing and they do not collect from him when he grows up. Thus far his words. And our teachers, the authors of the Shulchan Aruch, transcribed it in section 15. And it has already been explained in siman 96, section 4, that in a business transaction that is for the benefit of the minor, when the minor admitted, they collect from him when he has reached the age of toddlers, and here too it deals with reaching the age of toddlers. And there is one who wished to say that here, regarding one who borrowed for the purpose of his sustenance, they collect from him even when he has not reached the age of toddlers, but it does not imply so, for the Rosh compares it to a purchase which deals with reaching the age of toddlers. Furthermore, from the Talmud it implies explicitly that as long as he has not reached the age of toddlers, his actions are nothing in any matter. [And there it is from the Rambam and here it is from the Rosh, chapter 13 of Ketubot, and they transcribed them in the Shulchan Aruch according to their wording, and the Rosh did not see fit to explain that it deals with the time of toddlers because he was not dealing there with this matter].

Some say that even though a minor cannot sell his lands, nevertheless, he has the ability to encumber them, for if not so, he will not find anyone who will lend to him or sell him anything, and this is included within the regulation that they enacted for the sake of his livelihood. And so too, if he sold his lands during his minority, such that his sale is nothing and he must return the money he took, if he does not have the money, the buyer collects from his lands; for there is no reason to say that the buyer's money should be lost, even though he acted somewhat improperly. He also collects from his father's properties [Rashba]. However, he only collects from unencumbered properties and not from encumbered properties, for since the purchase is not sustained, the money is like an oral loan [ibid.].

It is a known matter that a minor male and a minor female, as long as they have not produced two hairs, are considered minors even if they are older than thirteen for a male and twelve for a female, and until the age of twenty they are considered minors. After twenty years, if the male produced the signs of a saris and the female the signs of an ailonit, which were explained in Even HaEzer siman 172, it is revealed retroactively that they were adults from the years of their majority, and the absence of hairs is due to the status of saris and ailonit. If they do not have these signs and have not produced two hairs, they are considered minors until the majority of the years of a person's life, which is seventy years, and until thirty-six years they are considered minors. Signs prior to twenty are not considered signs at all to establish him as a saris or her as an ailonit. Regarding two hairs, whenever one produces them after the years of majority—that is, a son after thirteen and a daughter after twelve—one is considered an adult from that moment. All these matters are a tradition reaching back to Moses from Sinai.

Therefore, that which they said, that he may sell his father's land when he is twenty, in what case does this apply? When he has produced two hairs, or if the signs of a saris appeared in him after twenty years; for if not so, he is still a minor and his sale is not a sale, even regarding his own land that he purchased, until he reaches his thirty-sixth year. And certainly before twenty, when he does not have hairs, he may not sell any land. And if he sold before it was clarified that he is an adult, and after some time he produced hairs—whereby it has now been clarified that he has become an adult now and not before—all his sales of land until he produced the hairs are void, and if he protested immediately upon becoming an adult, the sale is void. However, regarding the signs of a saris in a twenty-year-old, he becomes an adult retroactively from the age of thirteen years and one day, because it has been clarified that he is a saris by nature, and therefore he did not produce two hairs, and his sale stands.

One who sold either his own property or his father's property and died, and his relatives came and protested, saying they know he was a minor at the time of the sale who had not produced hairs, and regarding his father's property that he sold, they protest that he also did not have the signs of a saris, and they request to open his grave to examine him—we do not listen to them. For there is a hazakah that witnesses do not sign a document unless they know that the seller is an adult. And according to the words of the relatives, was it not a known matter that he had no hairs? Presumably the witnesses knew of this, or at least the relatives would have told them and they would not have signed the document. Furthermore, signs are prone to change after death, and it is impossible to examine him at all and clarify the truth. Furthermore, since according to their words the damage is to his heirs who come through his power, we are not permitted to allow the opening of his grave and to degrade him. And we establish him upon the hazakah that since he reached the age of years, he presumably produced signs. And it is a simple matter that if they bring proof that he had not yet reached the age of years, clarifying through witnesses when he was born, all his sales of land are void.

A katan who became a guarantor for others is exempt from paying even when he grows up, for this is not a matter of his livelihood, and the lender was negligent himself by accepting a guarantee from a katan; furthermore, there is no obligation regarding a katan to fulfill the words of the deceased [Mordechai, chapter 9 of Bava Batra]. And one who gave a gift to a katan through an adult who acquired it on his behalf, the one who acquired it should not hand it over to the katan, for it is like a deliberate loss, and perhaps the intention of the giver was that he should be an apotropus over this and store it until he grows up or spend it for the needs of the katan. Nevertheless, if he handed it to him and it was lost from his hand, we do not have the power to obligate him in payments [Beit Yosef in the name of the Rashba]. And it appears that just as the sages did not give permission to a katan to sell land, so too he does not have permission to sell slaves; for even though regarding matters of rabbinic law slaves are considered like movable property, nevertheless, we are witnesses that there is much deception in this as there is with land.

A cheresh is like a minor, for according to the Torah he has no power of acquisition, but the sages instituted for him acquisition in movables just as with a minor. Therefore, a cheresh who does not hear and does not speak, or speaks and does not hear anything even when they shout into his ear, sells and buys movables through gesturing, as he gestures with his fingers and they gesture to him, but not regarding land. Furthermore, even regarding movables, his actions are not established until they examine him with many examinations in the manner that they examine for bills of divorce for women, as is written in Even HaEzer siman 121, and they deliberate on the matter. However, a mute who hears and does not speak, or one who became silent due to illness, his purchase is a purchase and his sale is a sale, and also his gifts are established, whether in movables or in land, provided that they examine him in the manner that they examine for a get, or that he writes in his own handwriting that he sells or buys for such and such. This is the opinion of the Rambam, of blessed memory, who is more stringent regarding one who speaks and does not hear than one who hears and does not speak. But the opinion of the Tur is the opposite: that one who speaks and does not hear is like a person of sound senses, and one who hears and does not speak, his law is like one who does not hear and does not speak. And one who speaks and also hears when they shout to him in a loud voice, he is like a completely sound person, even though in the language of people he is called a cheresh. And the reason for the institution regarding a cheresh is also for the sake of his livelihood.

And the shoteh, his purchase is not a purchase and his sale is not a sale, and his gifts are not valid, whether in land or in movable property, for he possesses not even a small amount of da'at. And beit din appoints apotropasim for shotim just as for minors, and there is a greater obligation than with minors, for the minor indeed possesses some da'at, but the shoteh has no da'at at all. And he has no power of acquisition through himself, but through others it is possible to transfer ownership to them as with a minor; however, to transfer ownership to themselves is not effective even when the da'at of another transfers it [it appears to me]. And in siman 35 it was explained what is called a shoteh. And so too the extreme simpletons who do not recognize things that contradict one another and do not understand the matters of a thing in the way that the rest of the am ha'aretz understand, and so too those who are confused and hurried in their da'at and the extremely deranged—behold, these are included among the shotim. And this matter is according to what appears to the judge, for it is impossible to define these things in writing. And the epileptic at the time of his seizure is like a shoteh, and at the time he is healthy, behold, his law is like a healthy person. And there is no difference whether he is an epileptic from a fixed time to a fixed time or if he is an epileptic without a fixed time, provided that his da'at is not constantly unsettled, because there are epileptics who even at the time of their health, their da'at is as if distracted. And one who is at times a shoteh and at times healthy, when he is healthy all his actions are valid, and he acquires for himself and for others like any person of da'at. And the witnesses must investigate well, lest at the end of the time of his health and at the beginning of the time of his foolishness he made the purchase and did not yet feel his foolishness. And if two witnesses say that he sold when he was a shoteh and two witnesses say that he was healthy, if the sale is movable property and they are in the hand of the buyer, we do not remove them from his hand, for we do not remove from the possessor with two against two, whether he is now healthy before us or whether he is a shoteh. And if it is land, it stands in the chazakah of the seller, for there is no chazakah in land [against the original owner], and we establish it in the chazakah of the original owner; however, to remove the produce, there is no power to remove from the possessor.

That which has been explained, that regarding land the action of a minor or a deaf-mute is nothing—if the minor and his relatives or the deaf-mute and his relatives wish to uphold the purchase or the sale, whether the opposing party can retract or not: some say that only the minor and the deaf-mute can retract and not the second party [the Maggid Mishneh, chapter 29, halacha 11]; and some say that since the sages nullified their power regarding land, both parties can retract [Nimukei Yosef, chapter 9 of Bava Batra]. And there is one who infers from the words of the Rambam there that he holds like the first opinion, but in truth there is no inference at all from his words; on the contrary, since he wrote "his actions are not established regarding land," it implies that the name of "sale" does not apply to this at all, and in any case it remains a legal doubt.

The purchase of a drunken person is a purchase, his sale is a sale, and his gifts are valid, whether in movable property or in land. But if he reached the drunkenness of Lot, such that he acts and does not know what he is doing, his actions are nothing and his law is like that of a shoteh. And a dying person is like a living person for all matters, and it will be explained in siman 250 with the help of Heaven.

A seller who sold land or movable objects and acquired them for the buyer through another party, and the buyer did not know at the time he acquired them for him, the buyer has the upper hand. If he desired to take them, the seller cannot retract, and if he did not desire them, they shall return to the seller. The seller cannot say, "Why should it be in the power of the buyer to retract while I do not have the power to retract?" for he originally entered into the transaction on this condition, since he acquired it for him without his knowledge. This is not similar to a minor according to the "some say" in section 24, who hold that the counterparty may also retract, for there, from the outset, he did not act properly by purchasing from a minor or selling to him, and consequently his actions are void; this is not the case here. Similarly, a slave who purchased, sold, gave a gift, or was given a gift, his master has the upper hand, whether to uphold the matter or to void it. With words alone he upholds or voids it, and there is no need to perform a kinyan from the master, for what is the relevance of a kinyan to this? For behold, his slave is like his own body, and when he consents, the kinyan of the slave remains a kinyan. The counterparty of the slave cannot retract if the master desires its fulfillment. The law of a husband's sale of his wife's property and the sale of the wife herself was explained in Even HaEzer siman 85 and siman 90. One who sells or purchases with a kinyan on Shabbat or Yom Tov, even though he is punished for having committed a transgression, nevertheless the act is valid, and they write the kinyan for the following day, for a transaction performed through a prohibition is valid, as I wrote in siman 208.