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Intent of the Seller and the Purchaser
Property Law
Sources
A
§
A dilemma was raised before
the Sages:
During
the
time,
i.e., the year, when a minor comes of age with regard to selling his deceased father’s property, i.e., during his eighteenth or twentieth year, is this year considered
as before
the
time
that he comes of age
or
is it considered
as after
the
time?
Does one come of age at the beginning or end of that year?
Rava says
that
Rav Naḥman says: During
that
time
is considered
as before
the
time,
and he does not come of age until the year has elapsed…
Bava Batra 155b:4-6
We learned
in a mishna
there
(
Gittin
59a): With regard to
children,
their
acquisitions
are considered
acquisitions and their sales
are considered
sales.
This is the case
with
respect to
movable properties,
but not with respect to real estate.
Rafram said: They taught
this
only if there is no steward [
apotropos
]
overseeing the children’s affairs.
However, if there is a steward, the
children’s
acquisitions are not
considered
acquisitions and their sales are not
considered
sales…
Ketubot 70a:3-4
Rabbi Shimon ben Lakish
said to
Rabbi Yoḥanan:
I concede to you with regard to
a case
where
the
members of
the deceased’s
family contested
the legality of the buyers’ claim
that
their
contesting
the legality of that claim
is not
taken into consideration, since they are contesting the deed held by the buyers. It is therefore possible for the buyers to take possession of the property, as in this case
what do
the relatives
say?
They say that the seller
was a minor…
Bava Batra 155a:2-3
MISHNA:
The following enactments were also made for the betterment of the world:
A deaf-mute may express
his wishes
through gestures [
romez
];
that is to say, he can signal that he wishes to buy or sell a certain item, and the purchase or sale is valid.
And
similarly
he may respond
to others
through gestures;
that is to say, he can signal that he agrees to a transaction initiated by another party, and the transaction is valid.
And ben Beteira says:
Signals are not necessary…
Gittin 59a:10
§ The mishna teaches that
a purchase
made
by young children
is a valid
purchase, and a sale
made by them is a valid
sale.
These
halakhot
apply
to
transactions involving
movable property.
The Gemara asks:
And from what
age are children included in this enactment?
Rav Yehuda pointed to Rav Yitzḥak, his son:
From the age of
about six or seven. Rav Kahana said:
From the age of
about seven or eight. It was taught in a
baraita
:
From the age of
about nine or ten.
…
Gittin 59a:14-20
Rav Ashi said to Mar Zutra:
In
what
way
is movable property different
from land? It is different
because
with regard to movable property
his sale is
a valid
sale. But if that is so,
consider
that which we learned
in a mishna (
Gittin
59a):
A purchase
made
by young children
is a valid
purchase, and a sale
made by them is a valid
sale.
These
halakhot
apply
to
transactions involving
movable property…
Bava Batra 155b:11-156a:2
Rabbi Yoḥanan raised an objection to Rabbi Shimon ben Lakish
from a
baraita
: There was
an incident in Bnei Brak involving one who sold
some
of his father’s property
that he had inherited,
and he died, and
the
members of
his
family came and contested
the sale,
saying: He was a minor at the time of
his
death,
and therefore the sale was not valid.
And they came and asked Rabbi Akiva: What is
the
halakha
? Is it permitted to exhume the corpse in order
to examine it
and ascertain whether or not the heir was a minor…
Bava Batra 154a:11
The Gemara raises an objection
from a
baraita
: With regard to
a deaf-mute,
the judges of the court
follow his signals, and follow the movement
of his lips,
and follow his handwriting only
for matters of buying and selling
movable property but not for bills of divorce.
This appears to contradict Rav Kahana’s statement that it is permitted for a deaf-mute husband to give written instructions to divorce his wife.
Gittin 71a:11
Rabbi Zeira said to him: A mute, you say?
Is your challenge based on the mishna which discusses one who is mute?
A mute is different
because it is clear that his mind is intact.
As it is taught
in a
baraita
(
Tosefta
,
Terumot
1:2): With regard to one
who speaks but cannot hear, this
individual
is
categorized as
a deaf person.
With regard to one
who hears but cannot speak, this
individual
is
categorized as
a mute person…
Gittin 71a:3
The Gemara notes:
We
already
learned this, as the Sages taught
in the
Tosefta
(
Terumot
1:2):
One who speaks but does not hear, this is a deaf
person. One who
hears but does not speak, this is a mute.
Both
this
one
and that
one
are
in the same legal category
as those who can see and hear
with regard
to all matters.
This shows that the
ḥeresh
exempted by the Sages is one who neither hears nor speaks.
Chagigah 2b:4
Conversely,
it is taught
in a
baraita
in accordance with
the opinion of
Rav Yehuda:
When a woman
brings appraised,
guaranteed
property
into her marriage
to her husband, if the husband wishes to sell
it,
he may not sell
it, as it belongs to her.
And not only
that, but
even
when her husband
brought
property
into
the marriage and added it to
her
dowry as
an appraised,
guaranteed gift
of his own,
even
if the husband wishes to sell
that gift
he may not sell
it…
Yevamot 66b:6
The Gemara
raises an objection
to this argument from the following
baraita
: With regard to one who is
intoxicated, his acquisition is a
binding
acquisition;
that is, he cannot retract the transaction when he is sober,
and
similarly,
his sale is a
binding
sale.
Moreover,
if he committed a transgression for which
he is liable to receive the
death
penalty,
he is executed;
and if the offense is punishable by
lashes, he is flogged…
Eruvin 65a:2-4
Rav Ashi said
in that case:
Establish two
witnesses
against
the
two
witnesses who contradict the testimony of the first pair,
and establish the money in the possession of bar Shatya.
The Gemara notes:
We say
that the property remains in the possession of bar Shatya
only when he has
possession of the property based on
the possession of his fathers. However, if he does not have
possession of the property based on
the possession of his fathers,
but he acquired the property himself…
Ketubot 20a:4
The Gemara cites a proof for this: This is
just as it is in
the case
concerning the property of
a man named
Bar Shatya,
who was referred to by this name because he would occasionally go insane. The case is as follows:
Bar Shatya sold property. Two
witnesses
came
forward
and said that he sold
it
when
he was
healthy
and therefore the sale was valid.
And two
others
came
forward
and said that he sold
it
when
he was
insane,
and so the sale was void…
Yevamot 31a:12
The third stage of development is when
they have reached the age of vows,
when
their vows are
valid
vows and their consecration is
valid
consecration. And with regard to a minor girl with the corresponding
stage of development,
she performs
ḥalitza
to free herself from her levirate bond.
And
with regard
to selling his father’s
landed
property,
a minor cannot sell it
until he will
reach the
age of twenty.
Gittin 65a:8
As Reish Lakish says:
There is
a presumption
that
witnesses do not sign on the document unless
the deal
was transacted with
each party being
an adult,
even if it is not mentioned explicitly in the document that the witnesses verified this. This reflects the principle that a document is not written by a scribe and signed by witnesses unless they know that the action to which it attests was performed appropriately. In light of this, the fact that a certain detail is missing from the wording of the document does not prove that the detail did not take place…
Sanhedrin 29b:19
There are three types of individuals whose purchase is not considered a binding purchase, nor is their sale considered a binding sale according to Scriptural Law: a deaf mute, a mentally incapable or emotionally unstable individual, and a minor. Our Sages, however, ordained that a deaf mute and a minor may buy and sell in order to guarantee their livelihood. How does a deaf person buy and sell? Both a deaf mute and a deaf person who can speak may buy and sell through gestures.
This applies with regard to movable property, but not with regard to landed property…
Mishneh Torah, Sales 29-30
The Gemara raises an objection
to this based on that which is taught in a
baraita
(
Tosefta
7:1):
Just as
the judges of the court
investigate him,
one who lost his ability to speak,
with regard to bills of divorce, so too,
the judges
investigate him with regard to business
transactions,
testimonies, and inheritances. In any event it teaches: Testimonies,
which proves that even one unable to speak can give testimony.
Gittin 71a:7
Similarly, if
one
first
purchased from the husband
the rights to use a field belonging to his wife,
and
afterward
he returned and purchased
the same field
from the wife,
so that if the husband were to predecease or divorce her, the purchaser would then own it fully,
his purchase is void.
The woman can claim that she did not wish to quarrel with her husband and to object to the transaction but that in truth she did not agree to the sale. By contrast, if he first acquired the field
from the wife…
Gittin 55b:10
The Gemara quotes a source for this claim:
Didn’t we learn
in a mishna (
Gittin
55b): If one first
purchased
land
from the husband and
afterward
returned and purchased
it
from the wife,
i.e., he purchased her rights to this land for after the death of her husband or in the event of their divorce, as stipulated in her marriage contract, then
his transaction is void. Apparently, she said: I did
it, i.e., signed this bill of sale, only to
please my husband,
but I did not mean it…
Bava Batra 49b:4-5
Property Law
דיני רכוש
Laws of the Release of Loans
Laws of Selling Ancestral Fields
Laws of Selling Property in a Walled City
Laws of the Methods of Acquisition
Laws of Retraction of a Transaction before its Completion
Laws of Cancellation of a Transaction and the Seller's Responsibility
Stipulations of a Purchased Acquisition
Intent of the Seller and the Purchaser
Laws of Ownerless Property
Laws of Gifts
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