The commandment of adjudicating between the buyer and the seller: That we must adjudicate cases of a buyer and seller according to what the Torah commanded — meaning that there are circumstances that the sale between the seller and buyer stands, and there are circumstances when it does not stand; and it is an obligation upon us to adjudicate between them according to the commandment of the Torah. And even though there are other commandments that came about this — as we have written in Parashat Mishpatim (Sefer HaChinukh 58) that we were commanded to adjudicate between the claimant and the defendant and between the injurer and the injured and similar to them; and all buying and selling is included in a claimant and a defendant — nonetheless, this commandment came specifically about the matter of buying and selling, since it is a constant thing with the creatures. As it is impossible to go even one day without it. And the section of “And when you sell, etc.” is stated about this. You find that this is the way of the Torah in many places — according to the necessity or severity of the matter will a commandment be specified for it. Likewise will warnings be repeated many times [in such cases]. As you see with the prohibition of idolatry that it was repeated in forty-four places, but a warning about Molekh was [still] singled out because this evil worship was very common. And also twelve warnings come about Shabbat in the Torah, but some types of work are [still] singled out with a warning — such as kindling and carrying. And even though there is a midrash about them [to ascertain] if they were [mentioned] to individualize [all the prohibitions of Shabbat] or to [reduce them] to a [simple] negative commandment, the midrash is not a contradiction for us; there are many [possibilities in explaining] the Torah.
The root of civil laws is well-known — as it is something to which human reason testifies and that it demands; for through law is civilization preserved among people.
From the laws of the commandment is that which they, may their memory be blessed, said (Kiddushin 26a-28b) that the laws of buying and selling are different according to what is being bought and sold: Land and slaves are acquired with money, a contract or possession; and there are many details with each of these — how is it with money, how is it with the contract and so [too,] with possession — as it appears in the first chapter of Kiddushin. Movable items are acquired in other ways — some are acquired by lifting (see Bava Batra 76b) and that is the greatest [form] of acquisition, and it is sufficient for all movable items. And some are acquired through an acquisition [that is of a] lower level than this, and that is dragging; and some are acquired through a [still] lower level, and this is handing over. And they, may their memory be blessed, brought a proof (Bava Metzia 47b) that movable items require these [ways of] acquisition and that they cannot be acquired like lands, from that which it is written (Leviticus 25:14), “or purchased from the hand of your fellow.” And they, may their memory be blessed, explained from the angle of the tradition in explanation of “or purchased from the hand” [as] meaning to say, something that is acquired from one hand to [another]. And likewise did they bring proof from other verses about the acquisition of lands with money, with a contract and with possession, as it appears in Kiddushin.
And there is no doubt that all of these acquisitions are from rabbinic enactment, and they [only] brought the verses to support their words. And the truth is that their dear wisdom that would eventually be revealed by them was hinted and stored in the verses. And even though the essence of the verses are not about these supports, they are learned from them. And they, may their memory be blessed, said (Bava Metzia 47b) [that] on a Torah level, money [is effective] even for movable properties, but the reason they required dragging it was a decree lest the seller say to the buyer “Your wheat burnt in the loft.” And because the ordinance of dragging was made for this, they, may their memory be blessed, said (Bava Metzia 49b) that if the movable items were in the buyer’]s domain — even if he rented that place to the seller — since the domain is the buyer’s and his eyes are always upon it and if any incident should happen to those movable items, he could also sense the matter like the buyer and attempt to rescue [them], as the seller could, in this case the sale is enacted only through money as the Torah prescribed, and not through dragging. And also, if the buyer rents that place that the movable items are located — in that case as well, they did not ordain dragging, giving over or lifting. And they also said (Bava Kamma 79b) that land is rented with the ways that it is bought — and that is money, a contract or possession — since renting is acquisition for its days. And they also said (Bava Batra 85b) that just as a person’s place acquires for him, so too his vessels can acquire for him in any place that he is allowed to leave them. And once the movable items are placed inside the vessel, neither of them can retract about it; rather it is as if it was lifted, or placed inside his house. But in a place where the buyer is not allowed to place his vessel, his vessels will not (it does not) acquire for him there — such as the public domain or the seller’s property. Nevertheless the Sages said regarding the seller’s domain that if the seller says to him, “Acquire with this vessel” — or even if he doesn’t say it, but the buyer acquired another vessel from him in the domain of the seller by lifting it, and afterwards acquired fruits from him and placed them into the vessel — he has immediately acquired them. As due to the pleasure that the seller receives from the sale of the vessel, he is not concerned with the place of the vessel and it is considered as if the vessel is in the buyer’s domain.
And handing over is not like this, as it only acquires in a public domain or a courtyard that belongs to neither of them (Bava Batra 76b). And acquisition by giving over is for that which is not the way of people to lift them, nor to even drag them, because of their great size — such as large ships and that which is similar to them that are impossible for people to move without much strain and many people (Mishneh Torah, Laws of Sales 3:3).
But dragging is not like this, as dragging only acquires in an alley — which is a place adjacent to the side of the public domain — where it is the way of people to leave their vessels there. [Any] vessels left in such a place may not be moved by [another person]. And dragging also acquires in a yard that [belongs] (does not belong) to both of them. But lifting acquires in all places; since he is lifting it with his body, and so (and with it), he acquires — because his body is his domain in all places that it is [present].
And there is yet another [method of] acquisition of lands and movable items on a Torah level, and that is exchange. And this acquisition was formerly common in Israel. And this matter of exchange is that a man trades his beast for his fellow’s beast, or one vessel for another vessel, or vessels for land. And the Sages said about all of these (Mishneh Torah, Laws of Sales 5:5) that once the first dragged the object from his fellow; his fellow possessed the other object that he wanted to acquire from him, wherever it may be. And if anything happens that destroys the object, the loss is [absorbed by the purchaser]. And the law of acquisition by exchange is only with vessels, but not with produce; as produce cannot be used for exchange (Bava Batra 47a). As behold, we found explicitly in that verse from which we learned [about] exchange, that it is with a vessel (Ruth 4:7) — “And this was formerly common in Israel, a man would remove his shoe,” meaning his glove, and this is a vessel. And nevertheless, even though produce cannot be the medium of barter, with which to acquire, produce can be acquired through barter like a vessel; i.e., a person can use a vessel to acquire produce through barter — such that he give a vessel to his fellow, and possess the produce of his fellow wherever it may be. The same is not true of coins, which can neither be bartered with nor be acquired with barter — because the mind of people is always on the imprint, and the imprint may be cancelled by the will of the king or the great ones of the states. And people do not rely upon that which is not a firm thing, to acquire with. And so it cannot be acquired in barter, nor used for barter. But a coin the value of which is not because of its imprint is acquired in barter and can be used for barter, like all other movable items. And which one is that? That is a coin that was cancelled by the monrachy — and as Reish Lakish said in the chapter [entitled] HaZahav (Bava Metzia 46b), “Even a purse filled with coins” and “Rabbi Abba translated it as anka dinars and anigera — dinars. One is that the kingdom invalidated and one is that the province invalidated.”
When we said that it is not used as barter nor bartered for, the intention was not that the one who bought produce from his fellow for such-and-such money, is not obligated to pay him the money; for he is certainly obligated to pay him his money once he dragged the produce. Rather the matter is that it is not made into barter. As one who has a bag of coins that are not invalidated, as we said, and his fellow dragged vessels or a beast or produce and said to this fellow, “Behold, I am pulling this produce in exchange for that bag of coins that I have at home which has a hundred dinar” — his fellow does not possess those dinars at all. And if they get lost in any way — and even if it is beyond his control — they are not lost from [his fellow] at all. Rather [the original owner of the coins] is [still] obligated to give him one hundred dinar from any place. And this is [the meaning of] that which they, may their memory be blessed, said (Bava Metzia 44a), “He pulled the produce, but he did not [yet] give him the money, he cannot renege on [the transaction]” — meaning he is obligated to pay him the value from any place. As it was not said with a status of barter, but with a status of value. And so was it elucidated at the beginning of the chapter [entitled] HaZahav. As there, they said (Bava Metzia 45b), “‘The gold [coins] acquires the silver coins.’ What, is it not with barter? No, with value.” And it raises a difficulty there, “If so, [why the expression], ‘acquires’ — it should have been, ‘obligates?’” [This] is meaning to say that the expression of acquisition only falls upon something known, but this one brings whatever [objects of] value he wants. And it answers, “[Emend the text and] teach, “obligates” — meaning, he is obligated to give him the value once he pulled the produce from him, and he may not renege on it.
But [in the case of] one who gives his money to his fellow to acquire produce with it, the owner of the produce is not obligated to give it to him. As this is an ordinance of the Sages, may their memory be blessed — not to acquire with money but with dragging. Nonetheless, the Sages, may their memory be blessed, made him liable [if he does not give him the produce] to receive [the curse of] ‘The One Who dispenses [justice]’ (Bava Metzia 44a); as he went back on his word after he did an act with his fellow and took money from him. And this acquisition of exchange — which is [just] called, ‘acquisition’ by the Sages, may their memory be blessed — is a strong acquisition for every matter, whether for a sale, for a gift or for all of the conditions between a man and his fellow; as it is stated about it (Ruth 4:7), “to establish any matter [...] and this is a validation in Israel.” And the law of who is fitting to sell and his sale stands and who is not fitting — such as a competent person and an incompetent person; the law of one who sells things undifferentiatedly and does not explain all the things that he must explain; and the law of one who leaves anything over in his sale, whether in an item or in produce; the law of the borders that a man must mention in the selling of land and what is its status if he mentioned some of them but not all of them. And the law of one who sells property that is not his; and what is the law of the one who is forced to sell his land — and the distinction between he was hung and he sold, and he was hung and he gave. And the law of one who makes a condition with his fellow that if he will want to sell his land, he will sell it to him. And the one who sells his land with the intention to do any [particular] thing and it did not come up in his hand to do it; such as one who sells it with the intention of going to the Land of Israel, and in the end he does not go there, and all that is similar to this. And that which I say, with the intention to do any [particular] thing — it is not that the seller explicitly says the thing at the time of the sale, but rather that creatures know from his deeds and his words that this is his desire. (See Kiddushin 49b and Tosafot there.)
And the law of how is the selling of consecrated properties or synagogues, and for which matter is their selling permitted (Arakhin 21b). And the law of buying deeds — that they require the handing over of the deed and also writing that makes explicit that he is selling him the deed and any lien that it has (Bava Batra 76a). And the law of what would be if one gives money to his fellow to buy him something and he buys it for himself with that money; and the law of three that gave money to one, and he went and he bought with part of the money, how do they divide it. And the laws of that which they said, at four periods in the year does money [itself actually] acquire beasts — and therefore they, may their memory be blessed, said in the chapter [entitled] Oto ve’et Beno (Chullin 83a) that we make a butcher slaughter [an animal once he received the buyers’ money] against his will; and like the contextualization of Rabbi Ilai that Rabbi Yochanan said — which explained that [the Sages] stood their words upon the words of the Torah at these four times, and like Rabbi Yitschak said that Rabbi Yochanan said, “Money acquires from Torah writ.” And what is the law (Ketuvot 76b) of one who sells a beast and it is found to be “torn” (terminally ill and, so, unfit to eat). And the laws of a seller who says [the sale] is for a hundred and a buyer who says [it is] for fifty, and each one goes away, but he buys it afterwards undifferentiatedly. And the law of that which they said that a man may not sell what has not [yet] come to the world (Yevamot 93b). And the law of the owner of the sale; the law of a person’s agent, and his partner in his buying and his selling regarding his loss and his profit. And the rest of the many details of the commandment are elucidated in the first chapter of Kiddushin and in the fourth, eighth and ninth chapter of [Bava] Metzia, and in the third, fourth, fifth, sixth and seventh chapter of [Bava] Batra. And a few of them are in scattered other places in the Gemara. (See Tur, Choshen Mishpat.)
And [it] is practiced in every place and at all times by males, as it is upon them to administer justice. And a court that transgresses this and adjudicates between a buyer and a seller not according to the law that our perfect Torah commanded us about this has violated this commandment — unless if it did this with the consent of both of them, since it is allowed [to do so] with the acceptance of the two of them. As any condition with money is upheld.
מִצְוַת עֲשִׂיַּת דִּין בֵּין לוֹקֵחַ וּמוֹכֵר – שֶׁנָּדִין בְּדִין מִקָּח וּמִמְכָּר כְּעִנְיָן שֶׁצִּוְּתָה הַתּוֹרָה עָלָיו. כְּלוֹמַר, שֶׁיֵּשׁ צְדָדִין שֶׁתִּתְקַיֵּם הַמְּכִירָה בֵּין הַמּוֹכֵר לַלּוֹקֵחַ. וְיֵשׁ צְדָדִין שֶׁאֵין לָהּ קִיּוּם, וְהוּא חוֹבָה עָלֵינוּ לָדוּן בֵּינֵיהֶם כְּמִצְוַת הַתּוֹרָה. וְאַף עַל פִּי שֶׁבָּאוּ מִצְוֹת אֲחֵרוֹת עַל זֶה כְּמוֹ שֶׁכָּתַבְנוּ בְּפָרָשַׁת מִשְׁפָּטִים (מצוה נח), שֶׁנִּצְטַוִּינוּ לָדוּן בֵּין טוֹעֵן וְנִטְעָן וּבֵין מַזִּיק וְנִזָּק וְכַיּוֹצֵא בָּזֶה, וְכָל מִקָּח וּמִמְכָּר בִּכְלַל טוֹעֵן וְנִטְעָן הוּא, אַף עַל פִּי כֵן בָּאָה הַמִּצְוָה עַל עִנְיַן הַמִּקָּח וְהַמִּמְכָּר מְיֻחֶדֶת, מִפְּנֵי שֶׁהוּא דָּבָר תְּמִידִי אֶל הַבְּרִיּוֹת שֶׁאִי אֶפְשָׁר לִבְנֵי אָדָם לִחְיוֹת אֲפִלּוּ יוֹם אֶחָד זוּלָתוֹ, וְעַל זֶה נֶאֶמְרָה פָּרָשַׁת וְכִי תִמְכְּרוּ וְגוֹ'. וְאַתָּה מוֹצֵא שֶׁכָּךְ דַּרְכָּהּ שֶׁל תּוֹרָה בְּהַרְבֵּה מְקוֹמוֹת, שֶׁלְּפִי צֹרֶךְ הַדָּבָר אוֹ חֹמֶר שֶׁבּוֹ תִּתְיַחֵד הַמִּצְוָה בּוֹ, וּכְמוֹ כֵן תִּכְפֹּל הָאַזְהָרוֹת בְּדָבָר פְּעָמִים רַבּוֹת, כְּמוֹ שֶׁאַתָּה רוֹאֶה בְּאַזְהָרַת עֲבוֹדָה זָרָה שֶׁנִּכְפְּלָה בְּאַרְבָּעִים וְאַרְבָּעָה מְקוֹמוֹת, וְיִחֵד הָאַזְהָרָה בַּמֹּלֶךְ לְבַדּוֹ, לְפִי שֶׁהָיְתָה מְצוּיָה הַרְבֵּה אוֹתָהּ הָעֲבוֹדָה הָרָעָה, וְכֵן בָּאוּ בְּעִנְיַן שַׁבָּת שְׁתֵּים עֶשְׂרֵה אַזְהָרוֹת בַּתּוֹרָה, וְנִתְיַחֲדָה הָאַזְהָרָה בּוֹ בִּקְצָת מְלָאכוֹת, כְּמוֹ הַבְעָרָה וְהוֹצָאָה, וְאַף עַל פִּי שֶׁיֵּשׁ בָּהֶן מִדְרָשׁ אִם לְחַלֵּק יָצָאת אִם לְלָאו אֵין הַמִּדְרָשׁ לָנוּ סְתִירָה, הַרְבֵּה פָּנִים לַתּוֹרָה.
The commandment of adjudicating between the buyer and the seller: That we must adjudicate cases of a buyer and seller according to what the Torah commanded — meaning that there are circumstances that the sale between the seller and buyer stands, and there are circumstances when it does not stand; and it is an obligation upon us to adjudicate between them according to the commandment of the Torah. And even though there are other commandments that came about this — as we have written in Parashat Mishpatim (Sefer HaChinukh 58) that we were commanded to adjudicate between the claimant and the defendant and between the injurer and the injured and similar to them; and all buying and selling is included in a claimant and a defendant — nonetheless, this commandment came specifically about the matter of buying and selling, since it is a constant thing with the creatures. As it is impossible to go even one day without it. And the section of “And when you sell, etc.” is stated about this. You find that this is the way of the Torah in many places — according to the necessity or severity of the matter will a commandment be specified for it. Likewise will warnings be repeated many times [in such cases]. As you see with the prohibition of idolatry that it was repeated in forty-four places, but a warning about Molekh was [still] singled out because this evil worship was very common. And also twelve warnings come about Shabbat in the Torah, but some types of work are [still] singled out with a warning — such as kindling and carrying. And even though there is a midrash about them [to ascertain] if they were [mentioned] to individualize [all the prohibitions of Shabbat] or to [reduce them] to a [simple] negative commandment, the midrash is not a contradiction for us; there are many [possibilities in explaining] the Torah.
שֹׁרֶשׁ הַדִּינִין יָדוּעַ. כִּי הוּא דָּבָר שֶׁשֵּׂכֶל בְּנֵי אִישׁ מֵעִיד עָלָיו וּמְבַקֵּשׁ אוֹתוֹ, כִּי בַּדִּין יִתְקַיֵּם יִשּׁוּב בֵּין בְּנֵי אָדָם.
The root of civil laws is well-known — as it is something to which human reason testifies and that it demands; for through law is civilization preserved among people.
מִדִּינֵי הַמִּצְוָה מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (קדושין כו כח), שֶׁדִּינֵי הַמִּקָּח וְהַמִּמְכָּר חֲלוּקִים לְפִי הַדְּבָרִים הַנִּמְכָּרִים וְהַנִּלְקָחִים, שֶׁהַקַּרְקָעוֹת וְהָעֲבָדִים נִקְנִים בְּכֶסֶף וּבִשְׁטָר וּבַחֲזָקָה, וּבְכָל אֶחָד מֵאֵלּוּ כֵּיצַד בְּכֶסֶף, וְכֵיצַד בִּשְׁטָר, וְכֵן בַּחֲזָקָה, יֵשׁ בָּהֶם פְּרָטִים רַבִּים, כְּמוֹ שֶׁבָּא בְּקִדּוּשִׁין בְּפֶרֶק קַמָּא. וְהַמִּטַּלְטְלִין נִקְנִין בִּדְרָכִים אֲחֵרִים יֵשׁ מֵהֶן שֶׁנִּקְנִין בְּהַגְבָּהָה (עי' ב"ב עו ב), וְזֹאת הַקְּנִיָּה גְּדוֹלָה וּמַסְפֶּקֶת לְכָל הַמִּטַּלְטְלִין, וְיֵשׁ מֵהֶן שֶׁנִּקְנִים בִּקְנִיָּה פְּחוּתָה מִזּוֹ, וְהִיא הַמְּשִׁיכָה, וּמֵהֶן שֶׁנִּקְנִין בִּפְחוּתָה מִזּוֹ, וְהִיא הַמְּסִירָה. וְהֵבִיאוּ זִכְרוֹנָם לִבְרָכָה (ב"מ מז, ב) רְאָיָה עַל הֱיוֹת הַמִּטַּלְטְלִין צְרִיכִין אֵלּוּ הַקְּנִיּוֹת וְשֶׁאֵינָן נִקְנִין כְּמוֹ הַקַּרְקָעוֹת, מִדִּכְתִיב (ויקרא כה יד) אוֹ קָנֹה מִיַּד עֲמִיתֶךָ. וּפֵרְשׁוּ הֵם זִכְרוֹנָם לִבְרָכָה מִצַּד הַקַּבָּלָה בְּפֵרוּשׁ אוֹ קָנֹה מִיַּד כְּלוֹמַר, דָּבָר הַנִּקְנֶה מִיָּד לְיָד. וּכְמוֹ כֵן הֵבִיאוּ רְאָיָה עַל קְנִיַּת הַקַּרְקָעוֹת בְּכֶסֶף בִּשְׁטָר וּבַחֲזָקָה מִכְּתוּבִים אֲחֵרִים, כְּמוֹ שֶׁבָּא שָׁם בְּקִדּוּשִׁין (שם).
From the laws of the commandment is that which they, may their memory be blessed, said (Kiddushin 26a-28b) that the laws of buying and selling are different according to what is being bought and sold: Land and slaves are acquired with money, a contract or possession; and there are many details with each of these — how is it with money, how is it with the contract and so [too,] with possession — as it appears in the first chapter of Kiddushin. Movable items are acquired in other ways — some are acquired by lifting (see Bava Batra 76b) and that is the greatest [form] of acquisition, and it is sufficient for all movable items. And some are acquired through an acquisition [that is of a] lower level than this, and that is dragging; and some are acquired through a [still] lower level, and this is handing over. And they, may their memory be blessed, brought a proof (Bava Metzia 47b) that movable items require these [ways of] acquisition and that they cannot be acquired like lands, from that which it is written (Leviticus 25:14), “or purchased from the hand of your fellow.” And they, may their memory be blessed, explained from the angle of the tradition in explanation of “or purchased from the hand” [as] meaning to say, something that is acquired from one hand to [another]. And likewise did they bring proof from other verses about the acquisition of lands with money, with a contract and with possession, as it appears in Kiddushin.
וְאֵין סָפֵק כִּי אֵלּוּ הַקְּנִיּוֹת כֻּלָּן מִתַּקָּנַת חֲכָמִים הֵן, וְהֵבִיאוּ הַכְּתוּבִים לִסְמֹךְ בָּהֶם דִּבְרֵיהֶם. וְהָאֱמֶת כִּי חָכְמָתָם הַיְּקָרָה הָעֲתִידָה לְהִגָּלוֹת עַל יָדָם הָיְתָה רְמוּזָה וּגְנוּזָה בְּתוֹךְ הַכְּתוּבִים, וְאַף עַל פִּי שֶׁעִקַּר הַכְּתוּבִים אֵינוֹ עַל אוֹתָן אַסְמַכְתּוֹת נִלְמָדוֹת הֵן מִתּוֹכָן. וְאָמְרוּ זִכְרוֹנָם לִבְרָכָה בַּגְּמָרָא (ב"מ שם) דְּבַר תּוֹרָה מָעוֹת קוֹנוֹת אַף בַּמִּטַּלְטְלִין, אֲבָל טַעַם הַצְרִיכָם הַמְּשִׁיכָה בָּהֶן גְּזֵרָה שֶׁמָּא יֹאמַר לוֹ מוֹכֵר לַלּוֹקֵחַ נִשְׂרְפוּ חִטֶּיךָ בָּעֲלִיָּה. וּמִפְּנֵי שֶׁתַּקָּנַת הַמְּשִׁיכָה נַעֲשֵׂית עַל זֶה, אָמְרוּ זִכְרוֹנָם לִבְרָכָה (שם מט ב), שֶׁאִם הָיוּ הַמִּטַּלְטְלִין בִּרְשׁוּתוֹ שֶׁל לוֹקֵחַ, אַף עַל פִּי שֶׁנִּשְׂכַּר אוֹתוֹ מָקוֹם לַמּוֹכֵר, מִכֵּיוָן שֶׁהָרְשׁוּת הוּא שֶׁל לוֹקֵחַ וְעֵינָיו תָּמִיד עָלָיו, וְאִם יֶאֱרַע שׁוּם מִקְרֶה בְּאוֹתָן מִטַּלְטְלִין, גַּם הוּא יָכוֹל לְהַרְגִּישׁ בָּעִנְיָן כְּמוֹ הַמּוֹכֵר וְיִשְׁתַּדֵּל בַּהַצָּלָה, שֶׁבְּצַד זֶה לֹא יִקְנֶה בִּמְשִׁיכָה אֶלָּא בְּכֶסֶף כְּדִין תּוֹרָה. וְכֵן אִם הַלּוֹקֵחַ שׂוֹכֵר אוֹתוֹ מָקוֹם שֶׁהַמִּטַּלְטְלִין בּוֹ גַּם בְּעִנְיָן זֶה לֹא תִּקְּנוּ בָּהֶם מְשִׁיכָה וּמְסִירָה וְהַגְבָּהָה. וְאָמְרוּ (ב"ק עט, ב) גַּם כֵּן שֶׁהַקַּרְקַע נִשְׂכָּר עִם הַדְּבָרִים שֶׁהוּא נִלְקָח, וְהוּא כֶּסֶף וּשְׁטָר וַחֲזָקָה, שֶׁהַשְּׂכִירוּת קְנִיָּה הִיא לְיוֹמֵהּ. וְאָמְרוּ (ב"ב פה, א) גַּם כֵּן כְּשֵׁם שֶׁמְּקוֹמוֹ שֶׁל אָדָם קוֹנֶה לוֹ, כָּךְ כִּלְיוֹ קוֹנָה לוֹ בְּכָל מָקוֹם שֶׁיִּהְיֶה לוֹ רְשׁוּת לְהַנִּיחַ אוֹתוֹ, וּמִכֵּיוָן שֶׁיִּהְיוּ הַמִּטַּלְטְלִין בְּתוֹךְ הַכְּלִי אֵין אֶחָד מֵהֶם יָכוֹל לַחְזֹר בּוֹ, אֶלָּא הֲרֵי הֵן כְּמִי שֶׁהִגְבִּיהָן אוֹ כְּמוֹ שֶׁהֻנְּחוּ בְּתוֹךְ בֵּיתוֹ, אֲבָל כָּל מָקוֹם שֶׁאֵין לוֹ רְשׁוּת לַלּוֹקֵחַ לְהַנִּיחַ שָׁם הַכְּלִי אֵין כִּלְיוֹ קוֹנֶה לוֹ שָׁם כְּגוֹן רְשׁוּת הָרַבִּים, וְכֵן רְשׁוּת הַמּוֹכֵר. וּמִכָּל מָקוֹם אָמְרוּ חֲכָמִים לְעִנְיַן רְשׁוּת מוֹכֵר, שֶׁאִם אָמַר לוֹ מוֹכֵר לַלּוֹקֵחַ קְנֵה בִּכְלִי זֶה, אוֹ אֲפִלּוּ לֹא אָמַר לוֹ כֵּן, אֶלָּא שֶׁקָּנָה מִמֶּנּוּ בִּרְשׁוּת הַמּוֹכֵר כְּלִי אַחֵר וְהִגְבִּיהוֹ כְּדֵי לִקְנוֹתוֹ וְאַחַר כָּךְ קָנָה מִמֶּנּוּ פֵּרוֹת וְהִנִּיחָן בְּתוֹךְ הַכְּלִי מִיָּד קָנָה אוֹתָן, שֶׁמִּפְּנֵי הַהֲנָאָה שֶׁיֵּשׁ לוֹ לַמּוֹכֵר בִּמְכִירַת הַכְּלִי אֵינוֹ מַקְפִּיד עַל מְקוֹמוֹ שֶׁל כְּלִי, וּכְאִלּוּ הַכְּלִי בִּרְשׁוּת הַלּוֹקֵחַ חָשְׁבִינַן לֵיהּ.
And there is no doubt that all of these acquisitions are from rabbinic enactment, and they [only] brought the verses to support their words. And the truth is that their dear wisdom that would eventually be revealed by them was hinted and stored in the verses. And even though the essence of the verses are not about these supports, they are learned from them. And they, may their memory be blessed, said (Bava Metzia 47b) [that] on a Torah level, money [is effective] even for movable properties, but the reason they required dragging it was a decree lest the seller say to the buyer “Your wheat burnt in the loft.” And because the ordinance of dragging was made for this, they, may their memory be blessed, said (Bava Metzia 49b) that if the movable items were in the buyer’]s domain — even if he rented that place to the seller — since the domain is the buyer’s and his eyes are always upon it and if any incident should happen to those movable items, he could also sense the matter like the buyer and attempt to rescue [them], as the seller could, in this case the sale is enacted only through money as the Torah prescribed, and not through dragging. And also, if the buyer rents that place that the movable items are located — in that case as well, they did not ordain dragging, giving over or lifting. And they also said (Bava Kamma 79b) that land is rented with the ways that it is bought — and that is money, a contract or possession — since renting is acquisition for its days. And they also said (Bava Batra 85b) that just as a person’s place acquires for him, so too his vessels can acquire for him in any place that he is allowed to leave them. And once the movable items are placed inside the vessel, neither of them can retract about it; rather it is as if it was lifted, or placed inside his house. But in a place where the buyer is not allowed to place his vessel, his vessels will not (it does not) acquire for him there — such as the public domain or the seller’s property. Nevertheless the Sages said regarding the seller’s domain that if the seller says to him, “Acquire with this vessel” — or even if he doesn’t say it, but the buyer acquired another vessel from him in the domain of the seller by lifting it, and afterwards acquired fruits from him and placed them into the vessel — he has immediately acquired them. As due to the pleasure that the seller receives from the sale of the vessel, he is not concerned with the place of the vessel and it is considered as if the vessel is in the buyer’s domain.
וְהַמְּסִירָה אֵינָהּ כֵּן, שֶׁאֵין הַמְּסִירָה קוֹנָה אֶלָּא בִּרְשׁוּת הָרַבִּים וּבְחָצֵר שֶׁאֵינָהּ שֶׁל שְׁנֵיהֶם (ב"ב עו ב). וְקִנְיַן הַמְּסִירָה הוּא בַּמֶּה שֶׁאֵין דֶּרֶךְ בְּנֵי אָדָם לְרֹב גָּדְלָן לְהַגְבִּיהָן וְלֹא אֲפִלּוּ לְמָשְׁכָן, כְּגוֹן הַסְּפִינוֹת הַגְּדוֹלוֹת וְכַיֹּצֵא בָּהֶן שֶׁאִי אֶפְשָׁר לִבְנֵי אָדָם לָזוּז אוֹתָן כִּי אִם בְּטֹרַח רַב וּבְרִבּוּי בְּנֵי אָדָם (רמב"ם מכירה פ"ג ה"ג).
And handing over is not like this, as it only acquires in a public domain or a courtyard that belongs to neither of them (Bava Batra 76b). And acquisition by giving over is for that which is not the way of people to lift them, nor to even drag them, because of their great size — such as large ships and that which is similar to them that are impossible for people to move without much strain and many people (Mishneh Torah, Laws of Sales 3:3).
וְהַמְּשִׁיכָה אֵינָהּ כֵּן, שֶׁאֵין הַמְּשִׁיכָה עוֹשָׂה קִנְיָן אֶלָּא בְּסִמְטָא, וְהוּא מָקוֹם סָמוּךְ לְצַד רְשׁוּת הָרַבִּים, שֶׁדֶּרֶךְ בְּנֵי אָדָם לְהַנִּיחַ שָׁם כְּלֵיהֶם, וְכָל הַקּוֹדֵם לְהַנִּיחַ שָׁם כֵּלָיו אֵין חֲבֵרוֹ רַשַּׁאי לְסַלְּקוֹ, וּכְמוֹ כֵן קוֹנָה הַמְּשִׁיכָה בְּחָצֵר [שֶׁהִיא] (שֶׁאֵינָהּ) שֶׁל שְׁנֵיהֶם, וְהַהַגְבָּהָה קוֹנָה בְּכָל מָקוֹם, לְפִי שֶׁבְּגוּפוֹ הוּא מַגְבִּיהַּ, וּבוֹ הוּא קוֹנֶה, וְגוּפוֹ רְשׁוּתוֹ הוּא בְּכָל מָקוֹם שֶׁהוּא.
But dragging is not like this, as dragging only acquires in an alley — which is a place adjacent to the side of the public domain — where it is the way of people to leave their vessels there. [Any] vessels left in such a place may not be moved by [another person]. And dragging also acquires in a yard that [belongs] (does not belong) to both of them. But lifting acquires in all places; since he is lifting it with his body, and so (and with it), he acquires — because his body is his domain in all places that it is [present].
וְעוֹד יֵשׁ קְנִיָּה אַחֶרֶת בְּקַרְקָעוֹת וּמִטַּלְטְלִין דְּבַר תּוֹרָה וְהִיא הַחֲלִיפִין, וְזֹאת הַקְּנִיָּה הָיְתָה מֻרְגֶּלֶת לְפָנִים בְּיִשְׂרָאֵל. וְעִנְיַן הַחֲלִיפִין הוּא, שֶׁאָדָם מַחְלִיף בְּהֶמְתּוֹ בְּבֶהֱמַת חֲבֵרוֹ, אוֹ כְּלִי בִּכְלִי, אוֹ כֵּלִים בְּקַרְקָעוֹת, וְאָמְרוּ חֲכָמִים (רמב"ם מכירה ה ה) בְּכָל אֵלּוּ, שֶׁכֵּיוָן שֶׁמָּשַׁךְ הָאֶחָד הַכְּלִי מֵחֲבֵרוֹ זָכָה חֲבֵרוֹ בְּאוֹתוֹ הַכְּלִי הָאַחֵר שֶׁהוּא רוֹצֶה לִקְנוֹתוֹ מִמֶּנּוּ, בְּכָל מָקוֹם שֶׁיִּהְיֶה, וְאִם יֶאֱרַע בּוֹ שׁוּם אֲבֵדָה, נֶאֱבַד לְצֹרֶךְ זֶה שֶׁזָּכָה בּוֹ עַכְשָׁו בַּחֲלִיפִין. וְדִין קְנִיַּת הַחֲלִיפִין אֵינוֹ אֶלָּא בְּכֵלִים, אֲבָל לֹא בְּפֵרוֹת, שֶׁאֵין הַפֵּרוֹת עוֹשִׂין חֲלִיפִין (ב"מ מז א), שֶׁהֲרֵי בְּפֵרוּשׁ מָצָאנוּ בְּאוֹתוֹ כָּתוּב שֶׁלָּמַדְנוּ מִמֶּנּוּ הַחֲלִיפִין שֶׁבִּכְלִי הֵן, כְּמוֹ שֶׁכָּתוּב (רות ד ז) וְזֹאת לְפָנִים בְּיִשְׂרָאֵל שָׁלַף אִישׁ נַעֲלוֹ, כְּלוֹמַר, בֵּית יָד שֶׁלּוֹ וְזֶהוּ הַכְּלִי. וּמִכָּל מָקוֹם אַף עַל פִּי שֶׁאֵין הַפֵּרוֹת נַעֲשִׂין חֲלִיפִין לִקְנוֹת בָּהֶן כְּמוֹ בַּכְּלִי, נִקְנִין הֵן בְּתוֹרַת חֲלִיפִין, כְּלוֹמַר, בִּכְלִי יָכוֹל אָדָם לִקְנוֹתָן כְּדֶרֶךְ חֲלִיפִין, שֶׁיִּתֵּן אָדָם לַחֲבֵרוֹ כְּלִי וְיִזְכֶּה בְּפֵרוֹת חֲבֵרוֹ בְּכָל מָקוֹם שֶׁהֵן. מַה שֶׁאֵין כֵּן בְּמַטְבֵּעַ, שֶׁהַמַּטְבֵּעַ אֵינוֹ נַעֲשֶׂה חֲלִיפִין וְלֹא נִקְנֶה בַּחֲלִיפִין, לְפִי שֶׁדַּעְתּוֹ שֶׁל אָדָם עַל הַצּוּרָה, וְהַצּוּרָה עֲשׂוּיָה לְהִבָּטֵל בִּרְצוֹן הַמֶּלֶךְ אוֹ גְּדוֹלֵי הַמְּדִינוֹת, וְעַל מָה שֶׁאֵינוֹ דָּבָר קַיָּם אֵין לֵב הַבְּרִיּוֹת סוֹמֵךְ בּוֹ לִקְנוֹת בּוֹ, וְעַל כֵּן אֵינוֹ נִקְנֶה בַּחֲלִיפִין וְלֹא נַעֲשֶׂה חֲלִיפִין. אֲבָל מַטְבֵּעַ שֶׁאֵין חֲשִׁיבוּתוֹ מֵחֲמַת הַצּוּרָה נִקְנֶה בַּחֲלִיפִין וְנַעֲשֶׂה חֲלִיפִין כְּכָל שְׁאָר הַמִּטַּלְטְלִין, וְאֵיזֶהוּ? זֶה מַטְבֵּעַ שֶׁפְּסָלַתּוּ מַלְכוּת אוֹ בְּנֵי הַמְּדִינָה, וְכִדְאָמַר רֵישׁ לָקִישׁ בְּפֶרֶק הַזָּהָב (בבא מציעא מו, ב) אֲפִלּוּ כִּיס מָלֵא מָעוֹת, וְתִרְגְּמָהּ רַבִּי אַבָּא, בְּדִינָרָא נְיָאקָא וְאַנִּגְרָא, חַד פְּסָלַתּוּ מַלְכוּת וְחַד פְּסָלַתּוּ מְדִינָה.
And there is yet another [method of] acquisition of lands and movable items on a Torah level, and that is exchange. And this acquisition was formerly common in Israel. And this matter of exchange is that a man trades his beast for his fellow’s beast, or one vessel for another vessel, or vessels for land. And the Sages said about all of these (Mishneh Torah, Laws of Sales 5:5) that once the first dragged the object from his fellow; his fellow possessed the other object that he wanted to acquire from him, wherever it may be. And if anything happens that destroys the object, the loss is [absorbed by the purchaser]. And the law of acquisition by exchange is only with vessels, but not with produce; as produce cannot be used for exchange (Bava Batra 47a). As behold, we found explicitly in that verse from which we learned [about] exchange, that it is with a vessel (Ruth 4:7) — “And this was formerly common in Israel, a man would remove his shoe,” meaning his glove, and this is a vessel. And nevertheless, even though produce cannot be the medium of barter, with which to acquire, produce can be acquired through barter like a vessel; i.e., a person can use a vessel to acquire produce through barter — such that he give a vessel to his fellow, and possess the produce of his fellow wherever it may be. The same is not true of coins, which can neither be bartered with nor be acquired with barter — because the mind of people is always on the imprint, and the imprint may be cancelled by the will of the king or the great ones of the states. And people do not rely upon that which is not a firm thing, to acquire with. And so it cannot be acquired in barter, nor used for barter. But a coin the value of which is not because of its imprint is acquired in barter and can be used for barter, like all other movable items. And which one is that? That is a coin that was cancelled by the monrachy — and as Reish Lakish said in the chapter [entitled] HaZahav (Bava Metzia 46b), “Even a purse filled with coins” and “Rabbi Abba translated it as anka dinars and anigera — dinars. One is that the kingdom invalidated and one is that the province invalidated.”
וְאֵין הַכַּוָּנָה בְּאָמְרֵנוּ שֶׁאֵינוֹ נַעֲשֶׂה חֲלִיפִין וְלֹא נִקְנֶה בַּחֲלִיפִין, שֶׁמִּי שֶׁמָּשַׁךְ פֵּרוֹת מֵחֲבֵרוֹ בְּכָךְ וְכָךְ מָעוֹת לֹא יִתְחַיֵּב לָתֵת לוֹ הַמָּעוֹת, דְּוַדַּאי מִתְחַיֵּב הוּא לְהַשְׁלִים לוֹ מְעוֹתָיו. מִכֵּיוָן שֶׁמָּשַׁךְ פֵּרוֹתָיו, אֲבָל הָעִנְיָן הוּא שֶׁאֵינוֹ נַעֲשֶׂה חֲלִיפִין שֶׁמִּי שֶׁהָיוּ לוֹ שַׂק שֶׁל מָעוֹת מִמַּטְבֵּעַ שֶׁאֵינוֹ נִפְסָל, כְּמוֹ שֶׁאָמַרְנוּ, וּמָשַׁךְ מֵחֲבֵרוֹ כֵּלִים אוֹ בְּהֵמָה אוֹ פֵּרוֹת, וְאָמַר לַחֲבֵרוֹ הֲרֵנִי מוֹשֵׁךְ פֵּרוֹת אֵלּוּ חֲלִיפֵי אוֹתוֹ שַׂק שֶׁל מָעוֹת שֶׁיֵּשׁ לִי בַּבַּיִת שֶׁיֵּשׁ בּוֹ מֵאָה דִּינָרִין, אֵין חֲבֵרוֹ זוֹכֶה בְּאוֹתָן דִּינָרִין כְּלָל, וְאִם נֶאֶבְדוּ אַחַר שֶׁמָּשַׁךְ זֶה הַפֵּרוֹת בְּשׁוּם צַד וַאֲפִלּוּ בְּאֹנֶס לֹא נֶאֶבְדוּ לוֹ כְּלָל, אֶלָּא חֲבֵרוֹ מְחֻיָּב לָתֵת לוֹ מֵאָה דִּינָרִין מִכָּל מָקוֹם, וְזֶהוּ שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (שם מד א) מָשַׁךְ הֵימֶנּוּ פֵּרוֹת וְלֹא נָתַן לוֹ מָעוֹת אֵינוֹ יָכוֹל לַחְזֹר בּוֹ כְּלוֹמַר מְחֻיָּב הוּא לְהַשְׁלִים לוֹ הַדָּמִים מִכָּל מָקוֹם, דְּלֹא בְּתוֹרַת חֲלִיפִין אִתְּמַר, אֶלָּא בְּתוֹרַת דָּמִים. וְכֵן הוּא מְבֹאָר בְּרֵישׁ פֶּרֶק הַזָּהָב שֶׁאָמְרוּ שָׁם (מה, ב) הַזָּהָב קוֹנֶה אֶת הַכֶּסֶף מַאי לָאו בַּחֲלִיפִין? לֹא, בְּדָמִים. וּמַקְשֶׁה שָׁם אִי הָכִי, קוֹנֶה? מְחַיֵּב מִבָּעֵי לֵהּ כְּלוֹמַר, דְּלָא נָפִיל לְשׁוֹן קִנְיָן אֶלָּא בְּדָבָר יָדוּעַ, אֲבָל זֶה, מֵבִיא הוּא לוֹ אֵיזֶה דָּמִים שֶׁיִּרְצֶה. וּמְתָרֵץ, תְּנִי, מְחַיֵּב כְּלוֹמַר, מְחֻיָּב הוּא לָתֵת לוֹ הַדָּמִים מִכֵּיוָן שֶׁמָּשַׁךְ מִמֶּנּוּ אֶת הַפֵּרוֹת, וְאֵינוֹ יָכוֹל לַחְזֹר בּוֹ.
When we said that it is not used as barter nor bartered for, the intention was not that the one who bought produce from his fellow for such-and-such money, is not obligated to pay him the money; for he is certainly obligated to pay him his money once he dragged the produce. Rather the matter is that it is not made into barter. As one who has a bag of coins that are not invalidated, as we said, and his fellow dragged vessels or a beast or produce and said to this fellow, “Behold, I am pulling this produce in exchange for that bag of coins that I have at home which has a hundred dinar” — his fellow does not possess those dinars at all. And if they get lost in any way — and even if it is beyond his control — they are not lost from [his fellow] at all. Rather [the original owner of the coins] is [still] obligated to give him one hundred dinar from any place. And this is [the meaning of] that which they, may their memory be blessed, said (Bava Metzia 44a), “He pulled the produce, but he did not [yet] give him the money, he cannot renege on [the transaction]” — meaning he is obligated to pay him the value from any place. As it was not said with a status of barter, but with a status of value. And so was it elucidated at the beginning of the chapter [entitled] HaZahav. As there, they said (Bava Metzia 45b), “‘The gold [coins] acquires the silver coins.’ What, is it not with barter? No, with value.” And it raises a difficulty there, “If so, [why the expression], ‘acquires’ — it should have been, ‘obligates?’” [This] is meaning to say that the expression of acquisition only falls upon something known, but this one brings whatever [objects of] value he wants. And it answers, “[Emend the text and] teach, “obligates” — meaning, he is obligated to give him the value once he pulled the produce from him, and he may not renege on it.
אֲבָל הַנּוֹתֵן לַחֲבֵרוֹ מָעוֹת לִקְנוֹת מִמֶּנּוּ פֵּרוֹת אֵינוֹ מִתְחַיֵּב בַּעַל הַפֵּרוֹת לְתִתָּם לוֹ, שֶׁזּוֹ הִיא תַּקָּנַת חֲכָמִים זִכְרוֹנָם לִבְרָכָה, שֶׁלֹּא לִקְנוֹת בְּכֶסֶף אֶלָּא בִּמְשִׁיכָה, אֲבָל מִכָּל מָקוֹם חִיְּבוּהוּ זִכְרוֹנָם לִבְרָכָה (שם מד, א), לְקַבֵּל מִי שֶׁפָּרַע. לְפִי שֶׁחוֹזֵר בְּדִבּוּרוֹ, אַחַר שֶׁעָשָׂה מַעֲשֶׂה עִם חֲבֵרוֹ, שֶׁקִּבֵּל מִמֶּנּוּ מָעוֹת. וּקְנִיָּה זוֹ שֶׁל חֲלִיפִין שֶׁהִיא הַנִּקְרֵאת לַחֲכָמִים זִכְרוֹנָם לִבְרָכָה קִנְיָן הִיא קְנִיָּה [חֲזָקָה] בְּכָל דָּבָר, בֵּין בְּמֶכֶר, בֵּין בְּמַתָּנָה, וּבְכָל תְּנָאִים שֶׁבֵּין אָדָם לַחֲבֵרוֹ, שֶׁנֶּאֱמַר בָּזֶה לְקַיֵּם כָּל דָּבָר וְזֹאת הַתְּעוּדָה בְּיִשְׂרָאֵל. וְדִין מִי הוּא רָאוּי לִמְכֹּר וְיִתְקַיֵּם מִמְכָּרוֹ, וּמִי אֵינוֹ רָאוּי כְּגוֹן בֶּן דַּעַת וְשֶׁאֵינוֹ בֶּן דַּעַת, וְדִין מוֹכֵר דְּבָרִים סְתָם וְאֵינוֹ מְפָרֵשׁ כָּל הָעִנְיָנִים שֶׁצָּרִיךְ לְפָרֵשׁ, וְדִין מְשַׁיֵּר בְּמִמְכָּרוֹ שׁוּם דָּבָר, בַּגּוּף אוֹ בַּפֵּרוֹת, וְדִין מְצָרִים שֶׁצָּרִיךְ אָדָם לְהַזְכִּיר בְּמֶכֶר קַרְקַע, וְאִם הִזְכִּיר קְצָתָם וְלֹא כֻּלָּם הֵיאַךְ תּוֹרָתוֹ. וְדִין מוֹכֵר מָמוֹן שֶׁאֵינוֹ שֶׁלּוֹ מַה דִּינוֹ, וְדִין מִי שֶׁנֶּאֱנַס לִמְכֹּר קַרְקָעוֹ מַה דִּינוֹ וְהַחִלּוּק שֶׁבֵּין תַּלוּהּ וְזַבֵּין וְתַלוּהּ וְיָהֵיב. וְדִין הַמַּתְנֶה עִם חֲבֵרוֹ שֶׁאִם יִרְצֶה לִמְכֹּר קַרְקָעוֹ שֶׁיִּמְכְּרֵהוּ לוֹ, וְדִין הַמּוֹכֵר קַרְקָעוֹ עַל דַּעַת לַעֲשׂוֹת שׁוּם עִנְיָן וְלֹא עָלָה בְּיָדוֹ לַעֲשׂוֹת, אִם יִתְקַיֵּם מִכְרוֹ אִם לָאו, כְּגוֹן הַמּוֹכֵר אוֹתוֹ עַל דַּעַת לַעֲלוֹת לְאֶרֶץ יִשְׂרָאֵל וּלְבַסּוֹף לֹא עָלָה שָׁם, וְכֵן כָּל כַּיּוֹצֵא בָּזֶה. וְזֶה שֶׁאֲנִי אוֹמֵר עַל דַּעַת לַעֲשׂוֹת שׁוּם דָּבָר, לֹא שֶׁיְּפָרֵשׁ הַמּוֹכֵר אוֹתוֹ דָּבָר בִּשְׁעַת הַמֶּכֶר, אֶלָּא שֶׁהַבְּרִיּוֹת יוֹדְעוֹת מִתּוֹךְ מַעֲשָׂיו וּדְבָרָיו שֶׁכֵּן חֶפְצוֹ (עי', קידושין מט ב ובתוס' שם).
But [in the case of] one who gives his money to his fellow to acquire produce with it, the owner of the produce is not obligated to give it to him. As this is an ordinance of the Sages, may their memory be blessed — not to acquire with money but with dragging. Nonetheless, the Sages, may their memory be blessed, made him liable [if he does not give him the produce] to receive [the curse of] ‘The One Who dispenses [justice]’ (Bava Metzia 44a); as he went back on his word after he did an act with his fellow and took money from him. And this acquisition of exchange — which is [just] called, ‘acquisition’ by the Sages, may their memory be blessed — is a strong acquisition for every matter, whether for a sale, for a gift or for all of the conditions between a man and his fellow; as it is stated about it (Ruth 4:7), “to establish any matter [...] and this is a validation in Israel.” And the law of who is fitting to sell and his sale stands and who is not fitting — such as a competent person and an incompetent person; the law of one who sells things undifferentiatedly and does not explain all the things that he must explain; and the law of one who leaves anything over in his sale, whether in an item or in produce; the law of the borders that a man must mention in the selling of land and what is its status if he mentioned some of them but not all of them. And the law of one who sells property that is not his; and what is the law of the one who is forced to sell his land — and the distinction between he was hung and he sold, and he was hung and he gave. And the law of one who makes a condition with his fellow that if he will want to sell his land, he will sell it to him. And the one who sells his land with the intention to do any [particular] thing and it did not come up in his hand to do it; such as one who sells it with the intention of going to the Land of Israel, and in the end he does not go there, and all that is similar to this. And that which I say, with the intention to do any [particular] thing — it is not that the seller explicitly says the thing at the time of the sale, but rather that creatures know from his deeds and his words that this is his desire. (See Kiddushin 49b and Tosafot there.)
וְדִין מְכִירַת הֶקְדֵּשׁוֹת (ערכין כא ב) אוֹ בָּתֵּי כְּנֵסִיּוֹת כֵּיצַד, וּלְאֵיזֶה עִנְיָן הֻתַּר הַמֶּכֶר בָּהֶן, וְדִין קְנִיַּת שְׁטָרוֹת שֶׁצָּרִיךְ בָּהֶן מְסִירַת הַשְּׁטָר וּכְתִיבָה מִצַּד אַחֵר, שֶׁיְּפָרֵשׁ בּוֹ שֶׁהוּא מוֹכֵר לוֹ אוֹתוֹ שְׁטָר וְכָל שִׁעְבּוּדָא דְּאִית בֵּהּ (ב"ב עו א). וְדִין נוֹתֵן מָעוֹת לַחֲבֵרוֹ לִקְנוֹת לוֹ דָּבָר וּקְנָאוֹ לְעַצְמוֹ בְּאוֹתָן מָעוֹת מָה יְהֵא בָּזֶה. וְדִין שְׁלשָׁה שֶׁנָּתְנוּ מָעוֹת לְאֶחָד, וְהָלַךְ וְקָנָה בְּמִקְצָת הַדָּמִים הֵיאַךְ יְחַלְּקוּ, וְדִין מָה שֶׁאָמְרוּ שֶׁבְּאַרְבָּעָה פְּרָקִים בַּשָּׁנָה, מָעוֹת קוֹנוֹת לְעִנְיַן קוֹנֶה בְּהֵמָה, וּלְפִיכָךְ אָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּפֶרֶק אוֹתוֹ וְאֶת בְּנוֹ (חולין פג א) שֶׁמַּשְׁחִיטִין אֶת הַטַּבָּח עַל כָּרְחוֹ, וּכְאוֹקִימְתָּא דְּרַבִּי אִלְעַאי אָמַר רַבִּי יוֹחָנָן שֶׁפֵּרֵשׁ דִּבְאַרְבָּעָה פְּרָקִים אֵלּוּ הֶעֱמִידוּ דִּבְרֵיהֶם עַל דִּבְרֵי תוֹרָה, וְכִדְאָמַר רַבִּי יִצְחָק אָמַר רַבִּי יוֹחָנָן דְּבַר תּוֹרָה מָעוֹת קוֹנוֹת. וְדִין מוֹכֵר בְּהֵמָה וְנִמְצֵאת טְרֵפָה, מַה דִּינוֹ (כתובות עו ב). וְדִין מוֹכֵר אוֹמֵר בְּמָנֶה וְלוֹקֵחַ בַּחֲמִשִּׁים, הָלַךְ כָּל אֶחָד וְאֶחָד וְאַחַר כָּךְ לְקָחוֹ סְתָם, וְדִין מָה שֶׁאָמְרוּ שֶׁאֵין אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם (יבמות צג ב). וְדִין בַּעַל הַמֶּכֶר, וְדִין שְׁלוּחוֹ שֶׁל אָדָם וְשֻׁתָּפוֹ בְּמִקָּחוֹ וּמִמְכָּרוֹ, בְּהֶפְסֵדוֹ וּבִשְׂכָרוֹ. וְיֶתֶר פְּרָטֵי הַמִּצְוָה רַבִּים, יִתְבָּאֲרוּ בְּפֶרֶק רִאשׁוֹן מִקִּדּוּשִׁין, וּבְפֶרֶק רְבִיעִי וּשְׁמִינִי וּתְשִׁיעִי מִמְּצִיעָא, וּבְפֶרֶק שְׁלִישִׁי וּרְבִיעִי וַחֲמִישִׁי וְשִׁשִּׁי וּשְׁבִיעִי מִבָּתְרָא, וּקְצָת מֵהֶן בִּמְקוֹמוֹת אֲחֵרִים מְפֻזָּרִים בַּגְּמָרָא. [ח"מ].
And the law of how is the selling of consecrated properties or synagogues, and for which matter is their selling permitted (Arakhin 21b). And the law of buying deeds — that they require the handing over of the deed and also writing that makes explicit that he is selling him the deed and any lien that it has (Bava Batra 76a). And the law of what would be if one gives money to his fellow to buy him something and he buys it for himself with that money; and the law of three that gave money to one, and he went and he bought with part of the money, how do they divide it. And the laws of that which they said, at four periods in the year does money [itself actually] acquire beasts — and therefore they, may their memory be blessed, said in the chapter [entitled] Oto ve’et Beno (Chullin 83a) that we make a butcher slaughter [an animal once he received the buyers’ money] against his will; and like the contextualization of Rabbi Ilai that Rabbi Yochanan said — which explained that [the Sages] stood their words upon the words of the Torah at these four times, and like Rabbi Yitschak said that Rabbi Yochanan said, “Money acquires from Torah writ.” And what is the law (Ketuvot 76b) of one who sells a beast and it is found to be “torn” (terminally ill and, so, unfit to eat). And the laws of a seller who says [the sale] is for a hundred and a buyer who says [it is] for fifty, and each one goes away, but he buys it afterwards undifferentiatedly. And the law of that which they said that a man may not sell what has not [yet] come to the world (Yevamot 93b). And the law of the owner of the sale; the law of a person’s agent, and his partner in his buying and his selling regarding his loss and his profit. And the rest of the many details of the commandment are elucidated in the first chapter of Kiddushin and in the fourth, eighth and ninth chapter of [Bava] Metzia, and in the third, fourth, fifth, sixth and seventh chapter of [Bava] Batra. And a few of them are in scattered other places in the Gemara. (See Tur, Choshen Mishpat.)
וְנוֹהֶגֶת בְּכָל מָקוֹם וּבְכָל זְמַן בִּזְכָרִים, כִּי לָהֶם לַעֲשׂוֹת דִּין. וּבֵית דִּין הָעוֹבֵר עַל זֶה וְדָן בֵּין מוֹכֵר וְלוֹקֵחַ שֶׁלֹּא כַּדִּין שֶׁצִּוְּתָה עַל זֶה תּוֹרָתֵנוּ הַשְּׁלֵמָה בִּטֵּל עֲשֵׂה זֶה, זוּלָתִי אִם עָשָׂה כֵּן מִדַּעַת שְׁנֵיהֶם, שֶׁאִלּוּ בְּקַבָּלַת שְׁנֵיהֶם רַשַּׁאי, דְּכָל תְּנַאי שֶׁבְּמָמוֹן תְּנָאוֹ קַיָּם.
And [it] is practiced in every place and at all times by males, as it is upon them to administer justice. And a court that transgresses this and adjudicates between a buyer and a seller not according to the law that our perfect Torah commanded us about this has violated this commandment — unless if it did this with the consent of both of them, since it is allowed [to do so] with the acceptance of the two of them. As any condition with money is upheld.