Translation:Shulchan Aruch/Choshen Mishpat/209

Paragraph 1- If one transfers to another an item that was undefined but the actual item is known, even if the item’s measurement or weight is unknown, the recipient would acquire the item. If the item itself was unknown, the recipient would not acquire. How so? If the seller he says he is selling this bundle of wheat at such and such price, this wine cellar at such and such price or a bag of figs at such and such price, although the measurement of the bundle is unknown, the amount of barrels is unknown and the weight of the figs is unknown, the sale would be valid, even if it turned out to have less or more than they originally thought. The rules of overcharging would apply based on the market rate.

Paragraph 2- If one tells another that he is selling whatever is in this house for such and such amount or whatever is in this sack for such and such amount and the buyer agreed and pulled the item, however, there is no kinyan because the buyer has not made up his mind given that he does not know what is inside. It could be straw or gold. This is simply a case of dice-playing. The same applies to anything similar. There are those who say that the same is true where two parties swapped all their possessions. See above at the end of Siman 203 and later in 241:4 for the rules of one who sells an undefined item.

Paragraph 3- If one sells wheat to another for 10 dinar and did not set an amount for how many seah he is selling, he would give at the market rate at the time of sale. Any party who retracts after the money has been given and does not want to transact at the market rate at the time the money was given must accept “mi shepara.”

Paragraph 4- A person cannot transfer ownership of an item not yet in existence, regardless of whether it is a sale, a healthy-gift or a dying-gift. How so? If the seller said, “what is produced from this field is sold to you,” “what is produced from this tree is sold to you,” “give to so and so what this animal gives birth to” or if he said “what my cow or maidservant gives birth to is sold or given to you,” he has not said anything. Even if the cow or maidservant was pregnant, the recipient would not acquire anything. With respect to a tree, however, if the fruits had already sprout it would be considered something already in existence. A party can retract, even if the cow or maidservant gave birth or the fruits grew on the tree and were now in existence. If the buyer seized the fruits we would not remove them from him. The same applies with other items that are not yet in existence. Even if the recipient did not seize the item but a document was written and the document was handed over, it is as if he seized the item. If the seller sold the tree for its fruits or the cow or maidservant for their offspring, the buyer would acquire immediately and neither party can retract. If one tells another that he would acquire the money from the sale of the wine once the wine is sold, it is considered an item not yet in existence. There are those who say that this is only where he transferred without specification, but if they say that he will acquire once the item is in existence, he would acquire, notwithstanding the fact that right now it is not in existence. Although one cannot transfer ownership of an item not yet in existence, he can place a lien on an item. There are those who disagree. One can, however, obligate himself in the manner that was discussed above in 60:6. If someone transfers ownership of an item not yet in existence together with an item in existence, there are those who say it is comparable to the case of “you and a donkey” that will be discussed later at the end of Siman 210. If one swore to consummate the sale, he would be required to comply with his oath, even if it is something not yet in existence, as discussed above in 207:19 and 73:8. The item would not be acquired with a kinyan, however, Thus, if we are unable to force him to comply with the oath, such as where he died, this kinyan is of no effect. The same is true where he annulled his oath. Just as a person cannot transfer ownership of something not yet in existence, so too can he not waive something not yet in existence.

Paragraph 5- If an item has come into existence but is not yet in the party’s possession, it has the status of an item not yet in existence and one cannot acquire it. Either party may retract. This is discussed further in Siman 211. If the seller troubles himself and purchased the item, however, he must follow through with the sale because the reason he troubled himself to purchase was in order to keep his word.

Paragraph 6- If one sets a price based on the market value and accepted money but the seller did not yet own the item they set the price on, the seller is required to purchase the item and give the buyer the item they set the price on. If the seller would retract he must accept “mi shepara.” If he set a price before the market rate emerged, in which case the sale was done illegally, the seller may retract and does not have to accept “mi shepara.”

Paragraph 7- Just as a person cannot transfer ownership of something not yet in existence, so too can he not exclude anything not yet in existence. How so? If the seller sold a field to Reuven and excluded a set amount of its fruits annually for Shimon, Shimon would not acquire anything. If the seller excluded it for himself, however, he has generously excluded- there is no distinction in such a case between a sale or a gift- whether a healthy gift or a dying-person gift. There are those who disagree in a case of a dying-person gift. See later 212:3- and we say he has excluded the area of the fruits, even though he did not explicitly say so. Even if this buyer went ahead and sold this field to a third party, he cannot sell the portion that still belongs to the original seller, and the buyer must give the original seller what he excluded. If the seller had said “so long as this field is in your possession,” once the buyer sells to another, the original seller would lose his rights. Even if the first buyer went back and purchased from the second buyer, he does not have to give anything to the original seller. If the original seller dies, his children have no rights, even if he died while the field was in the first buyer’s possession, unless the seller explicitly said he was excluding for him and his inheritors. There are those who say that this is only where he did not exclude a specific item in which case it is merely a condition and thus he must specify that it is for him and his inheritors. If he excluded a specific item for himself, such as in the case of a house where he says he is excluding one story, however, his children would inherit his rights.

Paragraph 8- Although the buyer must give the excluded fruits to the seller, if he does not do so, the sale would not be voided. If the seller conditioned the sale on the buyer giving him or someone else the annual fruits, however, then the actual sale would be dependent on this condition and if the buyer does not give the fruits as stipulated the sale would be void because although a person cannot transfer ownership of something not yet in existence, he can still made a condition on something not yet in existence. The same is true with respect to a person removing his rights from a matter not yet in existence because he has not yet acquired it. See Even Haezer 92:11. There are those who say that although a person cannot transfer ownership of an item not yet in existence, if he also plans on acquiring something he can transfer as well. Thus, if two parties made a kinyan from each other on whatever gift that one of them was going to receive from a third party, he would acquire the gift. See earlier 176:3 where there are those who disagree.

Paragraph 9- If one sold or gifted his palm tree to another person and its fruits to another, he has not excluded the area of the fruits and the first buyer will acquire the tree and fruit and the second person will not acquire anything.

Paragraph 10- If a seller told the buyer to acquire the palm tree, excluding its fruits, he will also have excluded the place of the fruits, which are the branches, and the buyer will only own rights to the trunk once the tree dries.