SALE


SALE (Heb. מְכִירָה, mekhirah). Sale may be defined as the permanent transfer for consideration of existing legal rights from one person to another. The consideration may be in money or in kind. By extension the term "sale" is also used to denote a transfer of rights for a lengthy (but predetermined) period, such as the sale of land for a period of many years (BM 79a; BB 136b; cf. Yad, She'elah, 1:5). When sale is mentioned, however, it primarily refers to the transfer of real or proprietary rights and not to mere personal rights, i.e., obligations or debts, since it was at first legally impossible to transfer such rights (see *Assignment). The geonim already laid down that rights in rem applied only to corporeal or tangible things (Hai Gaon, Sefer ha-Mikkaḥ ve-ha-Mimkar, ch. 2, introd. i; cf. Resp. Maharashdam, ḤM 271), and therefore anything having neither length, breadth, nor depth – such as the smell of an apple or the taste of honey or the glitter of a precious stone – was incapable of being conveyed (Yad, Mekhirah, 12:14; cf. also TJ, BB 3:1, 13d and Ha-Ittur, vol. 1, introd., ch. 2, "Kinyan"). This is probably the reason why it is impossible to convey title in something which is not yet in existence – since, being intangible, it cannot be the subject matter of a real right – as also it is impossible to convey to someone who has not yet been born (see below).

In the biblical period the sale of real property was restricted. Thus, fields could only be sold until the Jubilee, in which year they would automatically revert to their owners (Lev. 25:13ff.), whereas dwelling houses in walled cities – if not redeemed within a year of their sale – would rest irrevocably with their purchasers regardless of the Jubilee (ibid.). In Jewish law the term sale does not mean an agreement to sell in the future, but an immediately effective transfer of ownership. Sale, nevertheless, raises many of the problems relating to the creation, interpretation, and execution of contractual obligations. In the Talmud, mekhirah is an example used for clarifying these problems, since the laws of sale are an application of the wider principles of property and contract. The transaction of a sale is concluded with the gemirat ha-da'at ("firm decision") of the parties to transfer the relevant rights irrevocably from one to the other – at which point neither may resile from the bargain. The parties rely on the sale if there has been a manifestation of their gemirat ha-da'at by such a way of speech or conduct as will be understood by most people as an agreement to conclude the transaction – whether or not this is in accordance with the subjective intention of either of the parties. Undisclosed thoughts are of no consequence, and the test of the conclusion of the sale is purely objective; if in the particular circumstances most people would express their intention to conclude the transaction in that particular and manifest manner, the transaction will accordingly be effective, and it is immaterial that either party did not really intend to conclude the transaction in that particular way, or that there was no consensus ad idem between one party and the other. A corollary of this test is the principle that the parties need not make up their minds to the identical thing, and there may sometimes be no actual consensus between the parties even if outwardly their conduct is so interpreted. Moreover, when it is manifest that one of the parties had not properly made up his mind to the transaction, he may withdraw from it but not the other party who had done so – as may happen in the case where one party is mistaken as to the quality of the subject sold (Yad, Mekhirah, 17:1), or he has been overcharged in respect of the price (ibid., 12:4).

The Decision of the Parties

The decision of the parties to conclude a sale is finalized by the performance of one of the appropriate acts of kinyan ("acquisition") by one of the parties – generally the purchaser – after the other parties have expressed their agreement that this be done (Ned. 44a; BB 54b; see *Acquisition (Kinyan)). Ownership thereupon passes, regardless of the question of possession, since possession sometimes accompanies the passing of ownership and sometimes not (see, e.g., BM 46a–b). If the consideration for the sale is a monetary payment, the purchaser, upon the passing of ownership, undertakes to pay the purchase price and it becomes a debt for which he is liable (BM 45b, 78b).

Furthermore, if an act is performed that brings about the gemirat ha-da'at of one or all of the parties but is not concluded by one of the customary acts of kinyan, any of the parties may withdraw; ownership will not have passed and the seller will remain responsible for the object. Nevertheless, since some of the parties rely upon such a sale and believe that all have made up their minds not to resile from it, any party who does retract is subject to the curse of "He who exacted vengeance from the generation of the flood and the generation of the dispersion will find redress from one who does not stand by his word" (BM 4:2). Hence, if the purchaser pays the consideration money to the seller but does not obtain possession of the object sold (i.e., meshikhah), the party who retracts will be subject to the said curse, since the payment of money is not a method of concluding a transaction in movables (BM 44a). Similarly, the fact that the seller has marked the object sold so as to distinguish it as his own will suffice to submit a retracting party to the curse – even though it is not local custom to conclude a transaction by making such a mark (BM 74a) – since there is a presumption that in affixing his mark the party concerned made up his mind to the bargain. Wherever the affixing of a mark is the customary manner of concluding a transaction, however, the sale will be effective and the parties will no longer be able to retract (BM 74a; see *Minhag). The sages disapprove of a party who retracts, even where the transaction is only concluded verbally, without the performance of any act by any party. If, however, there was a verbal promise which was not relied upon, the promisor may withdraw (BM 49a).

When it is clear that one of the parties has not made his decision to conclude the transaction – i.e., when most people would not do so in the circumstances – he may retract even if it has been agreed that title be effected and the act of kinyan performed. This is illustrated in the case of overreaching (see *Ona'ah), *mistake, certain cases of duress (see *Ones), the nonfulfillment of a condition of the sale, or when one of the parties lacks understanding, and whenever people for any other reason would not normally rely on the transaction. If a person under duress sells a part of his property, the sale will be effective, since he makes up his mind and agrees to the sale simply to rid himself of the duress. Some scholars, however, express the opinion that if he is under duress to sell a specific field the sale will be void (BB 48a). If, prior to the sale, the seller made a statement before witnesses to the effect that he was selling only because of duress – whether of a physical or monetary nature – and the witnesses know of the duress, it will be manifest that the seller had not made up his mind to the sale and the transaction will be void (BB 40a–b).

This is also the law in the case of mistake as to price, whether due to deceit and intentional or inadvertent, or whether the object was sold for more than its true value and the purchaser overcharged, or sold for less than its true value and the seller thus deceived (BM 51a). If the mistake as to price is within a discrepancy of less than one-sixth, the sale will still be effective, since such comparatively small margins are usually overlooked; if the rate is one-sixth exactly, the sale will be effective, but the difference must be refunded; if the rate exceeds one-sixth, the sale is voidable, and the party standing to lose may retract, since such a large mistake would not usually be tolerated. Refunding the difference or avoiding the transaction is only permitted within a specified period, during which the party at disadvantage could have become aware of his mistake; thereafter it is presumed that he has waived the rights arising from the mistake in favor of the other party and made up his mind to uphold the transaction as it stands (BM 49b; Rashi on the Mishnah, ibid.). The rules of mistake as to price apply equally to mistake in respect of any other aspect of the sale. Whenever the property sold or any of the conditions of the sale vary from that which the purchaser relied upon – and the variation is so great that people in similar circumstances would normally be particular enough to look upon the transaction as being something other than the one upon which they relied – it will be a case of a purchase in error (mikkaḥ ta'ut) which voids the transaction (see Sh. Ar., ḤM 232:6 and glosses thereto). Generally, if as a result of a variation in the property sold it is unsuited for the use for which the purchaser wanted it, it will be a case of mikkaḥ ta'ut (see, e.g., Yad, Mekhirah, 15:12, 13).

If the parties conclude the transaction of a sale and perform an act of kinyan, but have failed to determine the price, the purchaser will not have acquired title since there was no reliance on the transaction by the parties, and both of them may retract; if, however, the purchase price was fixed and known, the sale will be effective (Yad, Mekhirah, 4:11–12). Maimonides also expressed the opinion that a person cannot acquire from another something that is undetermined even as to species (Yad, Mekhirah, 21:1–3). Thus a purchaser cannot acquire title to "everything that is in this house, or box or sack, which the owner is selling for so much," even if he has performed an act of kinyan, since he does not rely on this transaction; however, when the species is known, e.g., "this heap of wheat or cellar of wine at such and such a price," the sale will be effective even if the actual measure and weight are unknown at that moment.

A sale by a person lacking legal capacity – such as a deaf mute, idiot, or minor – is void, since he lacks understanding and hence the absence of the element of gemirat ha-da'at. The sages prescribed, however, that certain sales by such parties would be valid "for the sake of his sustenance" (Git. 59a), i.e., in order to procure the necessities of life. It was laid down that the minimum required age in the case of a minor would depend on the degree of his understanding (ibid.) and this was detailed as follows: a minor aged six years and over, having sufficient understanding to appreciate the nature of the transaction, could sell and purchase movable property; from the age of 13, his sale or purchase would be effective in respect of movables, even if he could not appreciate the nature of the transaction, but ineffective in respect of land unless he could appreciate the nature of the transaction; a minor could not sell land inherited from his ancestors until he reached the age of 20 (Yad, Mekhirah, 29:6ff.). In the post-talmudic period, too, the age of majority was varyingly determined in respect of different legal transactions, depending upon the social and economic circumstances of the time (see Elon, in bibliography).

Sale of a Thing Not Yet in Existence

The Talmud records conflicting opinions as to whether or not a person can transfer title in respect of something not yet in existence. Some scholars answer in the negative, on the ground that the purchaser does not rely on the transaction, or for the reason that there is nothing to which ownership can apply and so ownership cannot be transferred. Another opinion in the Talmud is that a thing not yet in existence may be assigned and that the acquisition will take effect upon the thing's coming into existence, with the result that the parties may not retract. Even according to this opinion, however, only that which will come into existence in the ordinary course of events – such as the fruit of a tree – can be assigned; otherwise all the scholars agree that no transaction can be effected (BM 33b). The scholars who answer this point in the negative expressed the further opinion that a person could not transfer a thing which was not yet his, e.g., if he should say "let this field be acquired by you as of the moment that I shall have taken it for myself " and thus was the halakhah decided (Yad, Mekhirah, 22:5). The sages, however, prescribed that the sale by a poor hunter (lacking the necessities of life) of "everything that my hunt will produce to-day," would be effective, as would similar acquisitions in keeping with this rule (Yad, Mekhirah, 22:6). On the other hand, a person can undertake an obligation to transfer a thing not yet in existence (Sh. Ar., ḤM 60:6; see Law of *Obligations; *Contract). He can furthermore transfer a real right in property which is in existence, e.g., by transferring "the body for its fruits," and thereby confer title to a thing not yet in existence, such as a "tree for its fruit" or an "animal for its young" (Yad, Mekhirah, 23:1–2). An opinion is also expressed that if the thing which is sold is available on the market, the sale will be effective even though it is not yet the seller's, and the latter is obliged to deliver it to the purchaser (Yad, Mekhirah, 22:3 and Kesef Mishneh thereto).

With regard to a sale to a person as yet unborn, one opinion is that even if a person may transfer something that is not yet in existence, he cannot do so to a person as yet unborn; another opinion is that one can confer title in favor of a person as yet unborn even if he cannot do so with regard to a thing not yet in existence (Git. 13b and Tos. thereto). The halakhah was decided to the effect that a person could not confer title on a person as yet unborn, in the same way that he could not do so in respect of a thing not yet in existence (Sh. Ar., ḤM 210:1).

It is the accepted view that a person can neither consecrate nor confer title in respect of a thing which is not in his possession, even though it is his property (BK 70a and Tos. thereto); hence a person cannot do so in respect of property stolen from him, since the thief gains possession thereof (ibid.). However, another opinion is that one may consecrate, renounce (see *Hefker), and confer title even in respect to property which is not in one's possession (BK 68b).

The Conditions of the Sale

The decision of the parties to conclude a transaction is often made subject to various conditions, which must be fulfilled if the transaction is to be effective (see *Conditions). Thus if a person sells a house to another on condition that the latter perform some specific act on a specified day, the purchaser acquires the house if and when he performs the act in the specified manner, but not otherwise; the same applies if property is sold to the purchaser on condition that the latter give it to a third party, or if the seller has stipulated that the property is to be returned after a specified period – in which event the transaction is effective and the property must be returned (Yad, Mekhirah, 11:1). Likewise, the sale will be effective where a person stipulates that if he sells his field, the purchaser shall acquire it as of that moment, at a price to be determined later by three valuers (Yad, Mekhirah, 8:8).

The seller's decision to impose a condition on the sale must be manifest and made clear to all, including the purchaser, in the manner in which people would normally do so. Failing this, the sale may be effective but not the condition, since it will be seen from the seller's conduct that he did not intend to impose a material condition capable of voiding the transaction but a mere condition at large, not seriously intended. Hence, he must phrase his statements in the form of a double condition, i.e., specify what will be if the condition is fulfilled and what if not – since Hebrew-language usage requires both the affirmative and the negative to be specified, and if he does not follow the manner in which Hebrew is spoken, he is apparently not particular about fulfillment of the condition. Some scholars expressed the opinion that the requirement of a double condition applies only in the cases of *marriage and *divorce but not of sale, where a condition is effective whether a double one or not (Hassagot Rabad, Zekhiyyah, 3:8). Moreover, the phraseology of the condition requires the affirmative sentence to be included before the negative one, as only thus is it manifest that the party seriously intends to be particular about the fulfillment of the condition (Beit ha-Beḥirah, Kid, 61a); he must first state the condition and thereafter the act which is contingent on it, and not vice versa, and the condition must be one which is capable of being fulfilled by the purchaser, lest it appear that it was not seriously intended and the sale be effective without the condition (BM 94a; Kid. 61a).

At times, when it is manifest from the circumstances that the fulfillment of a condition has been relied upon, such condition will be effective even if the above-mentioned phraseology has not been adopted. Moreover, if it is manifest from the circumstances that the seller has relied on a certain condition, the condition will be effective even if he has not given any verbal expression thereto, since everything is dependent upon what people normally imply from the circumstances (Tos. to Kid. 49b). Often the parties do not specify any conditions and may not even be thinking of any, but the presumption is that they intend to sell and purchase in accordance with local custom. Hence local customs relating to purchase and sale are superimposed to supplement the decision of the parties; furthermore, statements of conditions which are not clearly expressed are construed in accordance with local custom (Yad, Mekhirah, 17:6; 26:7–8; 27:11; also Hassagot Rabad, Mekhirah 24:12). If the parties wish to exclude the conditions of local custom, they must make express provisions to this effect. Thus a person who transfers ownership to another generally intends it to pass upon the performance of the kinyan by the transferee; however, if for example, he says, "perform the kinyan and acquire 30 days hereafter," the acquisition will only be complete after 30 days (Ket. 82a).

Of the customary conditions, the most important one is the warranty of authority. Thus, one who purchases something which is later taken from him for reasons connected with the seller – for instance, that the land was not his or that it was mortgaged to his creditor – may hold the seller liable and recover the cost of it from him. This warranty of ownership by the seller is implied in every sale, even if not expressly formulated (Yad, Mekhirah, 19:3). If the seller wishes to be absolved from all or any part of such responsibility, he must do so by express stipulation (ibid., 19:8). Another opinion (BM 14a) is that in an ordinary sale the seller takes no responsibility upon himself unless a specific provision to the contrary is made.

The Mishnah, in listing various categories of sale, clarifies the different (implied) conditions that will be included unless otherwise provided for by the parties and if not contrary to local custom. Thus one who sells a field sells also the stones which serve the land, the unreaped grain, the watchman's booth, and the trees which have no intrinsic value, but not the stones that are not necessary to the land, or the grain that has been severed from the ground, and the like (BB 4:8). So too, one who sells a field for sowing does not include rifts in it or rocks which are more than ten handbreadths high (BB 7:1); one who buys two trees in another's field does not buy any land with them, but one who buys three trees, buys also the land on which they are growing (BB 5:4); one who has sold a wagon has not sold the mules, and if he has sold the mules he has not sold the wagon (BB 5:1); one who has sold the head of a large animal, has not sold its feet also, but in the case of sheep the feet are included in the sale of the head (BB 5:5). Similarly, the Mishnah enumerates that which is included or excluded in the sale of numerous items of property ranging from houses, buildings, and trees to slaves and animals (BB 4–7). Implied conditions also apply with regard to the price. Thus one who has sold wheat to another for a fixed amount of money without specifying the quantity, must deliver wheat according to the market price at the time of the sale (Yad, Mekhirah, 21:4).

In cases where there is difficulty in construing the parties' intention, their ultimate purpose may be arrived at with the aid of the rule that "he who sells, sells in a liberal spirit," i.e., a liberal interpretation of the agreement is made. Thus, one who sells a house but does not include the cistern in the sale must purchase from the buyer a right of way to it, since the terms of the sale are to be interpreted liberally and he did not retain a right of way (BB 64a–b). However, a person who has sold a field but retained two trees for himself will also retain the soil in which they grow, even though the purchaser of only two trees acquires no soil with them (BB 71a). There are conflicting views on the matter, some scholars stating that a restrictive interpretation is also possible, i.e., "one who sells, sells in an illiberal spirit." However, all scholars accept that the maxim of a liberal interpretation is applicable in the case of *gifts (BB 65a).

In the State of Israel

The rules of sale are set out in the Sales Law, 5828/1968, which in general adopts the draft uniform law relating to international sales, submitted at The Hague International Conference in 1964. In certain matters this law takes cognizance of the attitude of Jewish law (see Elon, in bibliography).

BIBLIOGRAPHY:

J.S. Zuri, Mishpat ha-Talmud, 5 (1921), 60–88; Gulak, Yesodei, 1 (1922), 55–93; 2 (1922), 152–9; Gulak, Oẓar, 159–82, 238–42, 306–8, 345f.; idem, Le-Ḥeker Toledot ha-Mishpat ha-Ivri bi-Tekufat ha-Talmud, 1 (Dinei Karka'ot, 1929), passim; idem, Toledot ha-Mishpat be-Yisrael bi-Tekufat ha-Talmud, 1 (Ha-Ḥiyyuv ve-Shi'budav, 1939), 10, 33 n. 12, 62–65, 74, 100–4, 106; Herzog, Instit, 2 (1939), 61–71, 107–39; ET, 1 (19513), 153–60, 216–8; 6 (1954), 616–24, 625–31, 661–83; 7 (1956), 30–67; B. Rabinowitz-Te'omim, Ḥukkat Mishpat (1957); M. Elon, in: ILR, 4 (1969), 91 n. 49, 122. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:69, 106, 179, 327ff., 571ff., 581, 595, 741ff.; 2:1284, 1290, index; idem, Jewish Law (1994), 1:77, 120, 200, 392ff.; 2:703ff., 716, 735, 913; 3:1533, 1540; 4; index; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 78–80, 213–27; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 51, 160–65; Enẓiklopedyah Talmudit, vol. 7, S.V. "davar shelo ba le-olam," 30ff.; index.

[Shalom Albeck]


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