Translation:Shulchan Aruch/Choshen Mishpat/207

Paragraph 1- If someone transfers ownership to another, regardless of whether it is real property or movable items, and made conditions that are possible to be fulfilled, regardless of whether the transferor or transferee made the condition- there are those who say, however, that if the seller made a condition for the good of the buyer, it is not a condition because it is just meaningless words. This applies where the seller originally sold without specification and before the sale was consummated, the seller made a condition. If the seller originally said he is selling on such and such condition, even if it is for the good of the buyer, the buyer will only have acquired on the basis of this condition and it is a bona-fide condition. Similarly, if they made the condition and subsequently wrote a document, they certainly wrote it subject to the condition- and the conditions were fulfilled, the item that was transferred would be acquired. If the conditions were not fulfilled, the buyer would not acquire the item. The laws of conditions have already been discussed in Tur Even Haezer Siman 38 and Siman 144. See later Siman 241 for the laws of conditions.

Paragraph 2- There are those who say that this applies where the buyer made one of the kinyanim used to acquire but he has a requirement to fulfill the condition. If he did not yet make a kinyan and he made a condition that once the condition is fulfilled he will make a kinyan but if not he will not make a kinyan, however, he will not acquire the item. Even if the condition is fulfilled, he would still not acquire because this is an asmachta and he would not acquire unless the seller told the buyer to acquire now and they made a kinyan.

Paragraph 3- If one sold his courtyard or field and specified at the time of the sale that he was selling in order to go to such and such place or because of the lack of rain so he can purchase wheat with the money, it is as if he sold conditionally. Thus, if rain subsequently fell after he sold, wheat arrived and the price fell, he was prevented from travelling on the road to that place or he was unsuccessful in travelling or purchasing wheat, the seller would return the money and the buyer would return the property because he specified that he was only selling to perform the aforementioned and he did not do so. The same applies to anything similar. This only applies where he sold his real property. Where he sold movable items, however, revealing his intention would not suffice unless he were to make a condition in accordance with the laws of conditions.

Paragraph 4- If one sells without specification, however, even if his intention was that he was only selling because of certain reasons, and even it seems likely that he only sold in order to perform certain actions, and he did not perform those actions, he cannot retract because he did not specify and words in the heart do not qualify as words. Even if he said prior to the sale that he is selling to perform those actions, because he did not say it at the time of the sale he would not be able to retract. If there is clear evidence, however, the sale would be void. There are those who say that with respect to a gift words in the heart do qualify as words.

Paragraph 5- If one transferred possession to another conditioned that he give the item to a third party or sell it to so and so and the recipient gave or sold to such person, he would acquire the item. If he did not fulfill the condition and he sold it to someone else or did not sell or give the item in the time-frame provided, he would not acquire the item. Similarly, if the seller or buyer conditions that he would return the item at a certain time or when the seller gives the money, the sale is valid and the buyer would return as agreed. If a gift against the will of the recipient is considered gifting and the condition fulfilled is discussed earlier in Siman 120.

Paragraph 6- If one sold real property with the condition that the buyer return it when the seller has the money, the buyer must return it when the seller brings the money. Therefore, the buyer is prohibited from consuming the fruits because this money is a considered a loan by him.

Paragraph 7- If the seller sold without specification and the buyer, on his own, told the seller that when he has money he should bring to him and he will return this real property, the condition is valid but the buyer can consume the fruits. There is no issue of quasi-interest because he obligated himself with this condition on his own volition.

Paragraph 8- An incident occurred where a woman sent a messenger to acquire real property from her relative, Shimon, and Shimon the seller told Reuven the messenger that if he obtains the money, so and so her relative must return the property, and Reuven responded, “you and so and so are related like brothers,” meaning it is quite probable she will return the property and is not concerned in doing so, and the incident came in front the Rabbis who said the messenger did not acquire anything because this seller-relative did not rely on the messenger since he did not give a full response, resulting in the seller not making up his mind to transfer.

Paragraph 9- If one lent another against a field for 100 gold coins and the field was worth more- there are those who say even if it was not worth more it would still be an asmachta- and the lender said that if he is not paid back within three years the field will be mine, it is an asmachta and the lender would not acquire the field. If he said, “if you do not pay me back within three years the field shall be mine effective now,” however, the lender would acquire the field. There are those who say that if originally when the borrower gave the collateral he was specific to only give this property as collateral, the lender would acquire even if he did not say “effective now.” Similarly, if the borrower said “if I don’t pay you back, you will have no recourse to collect other than from this property,” the property has the status of a designated collection and the borrower cannot remove him other than with money.

Paragraph 10- In any situation where the party does not acquire the field because it is an asmachta, he must subtract any fruits he consumed because its consumption would be biblical-interest. There are those who say that any fruits consumed in the first three years would not need to be subtracted because it is only quasi-interest. What the lender consumed after three years, however, must be returned. Similarly, any item that one does not acquire because it is an asmachta, must be returned by the lender, even if it is already in his possession, because it was given in error. There are those who disagree and say if it came to the acquirer’s possession he would acquire and it is not a considered a waiver or gift in error. Only fruits consumed after three years would need to be returned because there is a slight prohibition of interest since it was given as part of the loan. Otherwise, however, he would acquire the fruits.

Paragraph 11- If one gives a deposit to another and says that if he retracts he is waiving the deposit, and the other party says that if he retracts he will give back double of the deposit, and the buyer retracts, the seller would acquire the deposit because it is in his possession. If the seller retracts, we do not require him to double the deposit because it is an asmachta and an asmachta does not effect a kinyan. There are those who disagree and hold that even if the buyer were to retract the seller would not acquire the deposit, notwithstanding the fact that it is in his possession, because an asmachta does not effect a kinyan. All the more so is this true in a case where he deposited with a third party.

Paragraph 12- Similarly, if one paid a portion of his debt and gave the document to a third party and said if he does not give the remainder by such and such date he should give the document to the lender, and the time came and he did not pay back the remainder, the third party should not give the document because it is an asmachta.

Paragraph 13- Similarly, any condition made between parties, even with witnesses and a document, that if something occurs or the party does something he will give him a maneh or transfer possession of his house and if that thing does not occur or he did not do that thing, he will not transfer possession, even if he performed the action or the matter occurred, the recipient would not acquire because anyone who says “If this occurs…if this does not occur…” has not made up his mind to transfer possession since in his mind he relied on the fact that the matter may occur or may not occur. There are those who say there are three distinctions in the laws of asmachta: (i) in any situation where it is not in the party’s power to do and is dependent on others, such as where he says acquire wine from such and such place and if you do not acquire it you will owe me such and such amount, which is not in the party’s power because they may not want to sell to him, it would be an asmachta in all respects and no kinyan would be effected, (ii) in any situation where the party can perform the action and did not exaggerate, such as where he said, “if I leave the field barren and do not work it I will pay from the best property,” it would not be an asmachta and a kinyan would be effected. If he did exaggerate, however, and said “if I don’t work the field I will pay 1,000 zuz, it would be an asmachta and no kinyan would be effected. Thus, where a seller transfers to the buyer with the condition that if he does such and such he will acquire, it is an asmachta because the fulfillment of the condition is not dependent on the seller but on the buyer, and (iii) if it was not in the party’s or anyone else’s power, such as in the case of dice-playing or something similar where he one does not know whether he will be successful or not, and he still made the condition he has certainly made up his mind to transfer out of doubt. When is this true? With liquid money. If they were playing on credit, however, we cannot take away that which the party lost. There are those who say that even if he gave collateral on the money it would not help because there is no money here and thus no collateral, as was discussed above in 190:9. Where the money is set on the table, however, one is permitted to play and there is no issue of asmachta, not like those who disagree and hold one is prohibited from playing in all situations. There are those who say it is only permitted where the table where the money is placed is owned by both parties. See later Siman 270. An asmachta is only where the primary matter is dependent on the condition. If one obligates himself to another and says if the recipient is alive he will give to him and if not he will give to his inheritors, however, that is not called an asmachta because regardless he is obligated to give. The same applies to anything similar. There are those who say that this that dice-playing is not an asmachta because both parties are making a condition against each other and each party can lose, and thus the party wants to acquire and willingly agrees to transfer. Therefore, in any situation where two parties are opposed to each other, they would acquire if they made a kinyan on it. This is only where the money is not the parties’ possession. This would not apply, however, to money in their possession, as was discussed above in the case of deposit in seif 11. Even on this case there are those who disagree and thus they are forced to give other reasons by the cases of dice-playing and fines on engagement discussed later in seif 16.

Paragraph 14- If anyone says, “acquire, effective now,” there is no asmachta at all and the recipient would acquire, because had the transferor not made up his mind to transfer he would not have transferred now. How so? “If I come between now and such and such date, you should acquire this house, effective now,” and they made a kinyan on this, he would acquire if he came within that time. The same applies to anything similar. There are those who say that “effective now” alone does not suffice to remove an asmachta issue. Rather, they must also make a kinyan in a prestigious court and have it effective now. There are those who say that when one says “on the condition that” it has the status of “effective now” with respect to asmachata. There are those who disagree. If the asmachta is made as a penalty, we do not say “on the condition that” has the status of “effective now.”

Paragraph 15- If a kinyan was made on an asmactha in a prestigious court, the asmachta would take effect. Any three individuals who are experts in the laws of asmachta would be considered a prestigious court for these purposes. There are those who say we require the prestigious court of the city or a public expert. If the party instructed to write a document that they made a kinyan in a prestigious court, even if there was no kinyan it would be effective because an admission by a party has the status of 100 witnesses. Even if he did not instruct specifically but instructed to a write a loan document, it would be effective as if he said so explicitly. See earlier 61:5. This applies so long as the court takes possession of the party’s rights and he is not under duress. How so? If they take possession of the party’s document or receipt in court and made a kinyan on it that if the party does not come by such and such date this document will be given to his counterparty, and the date arrived and he did not come, the court would give the document so long as it is a prestigious court. There are those who say that even if the court did not take possession of the party’s rights it still would be effective given that they made a kinyan in a prestigious court. The Rosh writes that this is in fact society’s custom. If a river or sickness prevented the party from coming, the court should not give the document. The same applies to anything similar. The rest of this law was discussed in Siman 55 and Siman 21. There are those who say that if each party gave corresponding collaterals using the secular laws and document, they could even acquire an asmachta because the law of the government is the law. See above Siman 68.

Paragraph 16- When the Spanish Rabbis wanted to transfer via asmachta, they would do the following: they would each make a kinyan from each other that they owe each other 100 dinar. After they had obligated themselves they would make a kinyan from the creditor that so long as some circumstances exists or the other party does something, this debt is waived, effective now. If the matter does not exist or the party does not perform that action, the creditor is making a claim on the money the other party obligated him. They would use this method for all the conditions between a man and his wife at their engagement and anything similar. This is also our custom. This method works for all matters and in all circumstances. There are places that have the custom to write two complete loan documents and give both of them to a third party and the third party would give the documents to the opposing party of the party that violated the conditions. There are those who say that the penalties associated with those who back out of engagement is not considered an asmachata because it is reasonable to have the party retracting have to pay a fine to compensate for the embarrassment of the other party. This is indeed the custom in all these areas, but a kinyan is required, which we have the custom to do. Similarly, if a schoolteacher agreed when he was hired to pay a fine if he were to retract and they cannot find another teacher, it would not be an asmachta.

Paragraph 17- If two parties made a condition that they would do something together and they gave deposits as a fine in that if either were to retract the other would receive the deposit, he should not say, “if I retract I will give you such and such amount and here is the collateral on the money I owe you when I retract.” Rather, he should make a kinyan in a prestigious court with a handkerchief that this is not an asmachata so that he is required by law if he were to retract. He would then give the item as collateral and the lien would take effect on the collateral since he was obligated to pay him a fine if he were to retract. Alternatively, he can say, “if I retract you will acquire such and such money with this actual item.”

Paragraph 18- If a document states that if a party does not pay back by such and such date he will owe such and such money and the end of the document says “without asmachta, without etc.” that would not take away the issue of asmachta and there would be no kinyan. This seems the appropriate way to rule, notwithstanding the fact that there are those who disagree. The one taking away money from the other has the burden of proof.

Paragraph 19- A vow, oath and handshake are effective, even in a case of asmachta. See later Siman 209:4. The same would apply if the document states that the party accepted with a severe cherem or a biblical oath, as was discussed earlier in this Siman in seif 15 with respect to a prestigious court. This seems correct to me, notwithstanding the fact that there are those who disagree. If someone made a vow on some matter with asmachta to charity or hekdesh, the charity or hekdesh would acquire the item, as is discussed in Yoreh Deah 258:10.

Paragraph 20- If one obligates himself to another unconditionally even though he did not owe him anything, he would be required to pay, as was discussed in Siman 40. There is no issue of asmachta.

Paragraph 21- If a person obligated himself to an undefined amount, such as where he said I am obligating myself to feed you or clothe you for five years, according the Rambam he would not be obligated. All the later authorities disagree with the Rambam. See above 60:2.