Shabbat Parashat Shelach | 5769

Hemdat Hadaf Hayomi: When is a Sale Final?

Baba Metziah 43-49

This week in the Daf Hayomi, the Gemara (47b) deals with the important question of when the sale of movable items is considered final. Every act of selling includes three stages. The first stage is the verbal agreement between the buyer and seller to sell the item at a certain price. This stage is termed "devarim" by the Gemara.  The next two stages are the payment (="ma'aot") and the transfer of the item to the buyer (="meshicha"). It is possible to first pay and then transfer the object, or to first transfer the object and then complete the payment later.

There is agreement amongst Chazal that even after the devarim, the verbal agreement, each side can renege on the deal. Nevertheless, the Sages (48a) state that if one does so, then "the Sages are not pleased with his actions."  However, there is disagreement amongst Chazal regarding the following stages: According to Reish Lakish, from the perspective of the Torah, the item becomes in the possession of the buyer only after its transfer, meshicha, and until that point each side can renege. According to Rabbi Yochanan, from the Torah, the item becomes in the possession of the buyer only after the payment, ma'aot. However, continues Rabbi Yochanan, the Sages instituted that it becomes in the possession of the buyer only after meshicha. The reason for this institution is the following concern. If the buyer pays for the item before the seller transfers it to him, then, according to the Torah, it already belongs to the buyer even though it is still in the seller's property. If a fire will start in the seller's property, it is possible that he will refrain from saving the item, since it is no longer in his possession. Therefore, the Sages instituted that the buyer does not take possession until meshicha, the transfer of the item. Most Rishonim rule in accordance with Rabbi Yochanan, and so does the Shulchan Aruch (Choshen Mishpat 198, 1).

At first glance, it appears that after the institution of the Sages, there is no difference between Rabbi Yochanan and Reish Lakish, as both agree that meshicha is what creates the change in ownership. However, we find a few cases in which Chazal upheld the law of the Torah, that the payment affects the transfer of ownership. A few of the cases we will learn in the Daf Hayomi (46b, 47a, 49b) and some appear in other places in Shas. One interesting case, which does not appear in the upcoming pages, is from Masechet Chulin (83a). The Gemara there states that on four days during the year, the days before four holidays, because of the great demand for meat, the ownership of the meat is transferred through payment alone. According to some Poskim, this is also true regarding buying wine on Friday before Shabbat (Choshen Mishpat 199, 3).

Following this logic, the Poskim raise a few more cases where it is possible that the payment will affect the kinyan. According to the Mordechai (Baba Metziah 449), since the reason the Sages instituted that payment does not finalize the sale, is due to the possibility of fire, in a case where there is no concern for fire, the payment finalizes the sale. The Beit Yosef (198, 1) suggests that if the buyer and seller agree that the change in ownership will take place with the payment, then again, the payment is effective. Both opinions are quoted by the Ramma (ibid, 5). However, the Shach (ibid, 9-10) disagrees, claiming that even in a case where there is no concern for a fire, and even if the buyer and seller stipulated that the payment will create the transfer of ownership, meshicha is still required, as the institution of the Sages is binding in all cases.

Another interesting case, that the Pitchei Teshuvah (ibid, 6) raises, is when the item is insured. In such a case, even if a fire will occur and the seller will not save the item, the buyer will not lose, as he will be compensated by the insurance company. However, the Petchei Teshuvah concludes that even in such a case meshicha is required, for two reasons; firstly, in accordance with the reasoning of the Shach that the institution was for all cases, and secondly, that we should be concerned for the loss of the insurance company as well.

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