Does Money Create A Sale?

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by R. Gidon Rothstein

26 Adar: Chatam Sofer on Whether Money Does or Doesn’t Create a Sale

Halachah is meant to be a complete system, applicable to all areas of life. That includes monetary transactions, and I perhaps don’t often enough include responsa where a meshiv is asked to rule on such financial questions. These can seem less “religious,” and we’ll see that there’s more leeway for people to handle their transactions as they prefer, but even that must be within halachicparameters. Staying within those parameters is also a religious activity.

In the responsum at hand, Chatam Sofer 5, the Choshen Mishpat section, number 99, one man bought twenty-six barrels of schnapps, measured out the schnapps (transferring it from barrel to barrel, but the barrels belonged to the seller) and paid. The spoiler is that a fire destroyed the schnapps, before the buyer took further possession. The buyer wants to be paid back, since the schnapps never became his.

However, that last claim is not clear. Aside from the act of measuring, which might constitute an acquisition, the buyers sgned all the barrels and put his name down as their owner, which local custom saw as the completion of a sale. But he never performed the best-known form of halachic acquisition, meshichah, by dragging the barrels along for four amot’s distance (or by hagbahah, lifting them, but that’s not mentioned explicitly; apparently, the barrels were so heavy that the expected act of acquisition would bemeshichah).

The Damage of the Fire

The rabbi sending the question to Chatam Sofer mentions that the fire was accompanied by winds stronger than in many years, such that the seller could not possibly have saved the schnapps. Furthermore, the first started right where the schnapps was stored, whereas the seller lived in another section of the house. He didn’t know about the fire until it was already burning out the windows, leaving no possibility of getting into that room to save anything.

Worse, the law in that place was that if a fire broke out in a Jewish house, the locals had the right to throw the homeowner into the fire [it’s not explained, but I think this was a deterrent, a way to “force” the Jews to be more careful about fire; I also couldn’t find a reference to such laws in a quick online search, but I’ve failed in that regard before. I’m sure by putting it out there, I’ll stimulate someone to send me the reference I easily could have caught with a bit more effort]. For that reason, as soon as the fire broke out, the homeowner had to run away, to save his life (the law wasn’t that he deserved death, it was that he could be thrown into this fire; once it was out, he could return).

The buyer doesn’t much care, of course, since he wants what he paid for, or his money back. The seller claims that the money was also burnt, that he hadn’t even used any of it before the fire. So that he’s lose a lot in this fire either way, but the buyer wants to be compensated for his loss.

Checking Out the Fire

The first step Chatam Sofer recommends is investigating how the fire started. If the seller was  negligent, he’s responsible for the damage, even if all later circumstances were out of his control (the principle is known as techillato be-peshi’ah ve-sofo be-ones, starts with negligence and ends with out of one’s control). Here, if the homeowner was negligent about fire (Chatam Sofer notes that Choshen Mishpat 418 records many rules defining what counts as negligence), none of the rest matters.

The questioner seemed to think that the heavy winds showed this was beyond the seller’s control, but Chatam Sofer says that that’s only applicable to where the fire jumped a fence. Since the person who lit the fire didn’t have to expect such winds, he wouldn’t be liable for it’s having gone farther than he ought to have expected.

But in a house, the question isn’t how it progressed, it’s how it started. If it started negligently, how the wind does or doesn’t advance its progress through the house doesn’t matter.

The questioner had also suggested that the money might have been stolen rather than burned. Apparently, while the fire raged, robbers broke into the house to take what they could [this is somewhat at odds with the claim that there was no way to save anything; perhaps they stole easily portable items, like money, but there was no time to get heavier barrels of schnapps]. The questioner argued that if we treat the seller as a shomer sachar, someone paid to watch an item (since he’s making the money of the sale), he would be liable for the theft.

Chatam Sofer reminds him that the homeowner had to run away for fear of being thrown into the fire [this offers another option for the rule, that it gave non-Jews free reign to plunder without interference from the homeowner in case of fire]. That’s certainly ones, beyond his power to control. It all comes back, then, to whether the fire was ones from the outset.

Creating a Full Sale in Unusual Ways

All that assumes the schnapps in fact belonged to the buyer, and the money to the seller. But if the transaction had not completed, the seller would be categorized as a borrower (of the money used for the purchase), and therefore liable for that which is out of his control. While the buyer had many authorities who supported that claim, Chatam Sofer thinks the seller can point to enough who agree with him that we cannot force him to compensate the buyer.

(Remember that, in halachah, hamotzi me-chavero alav hare’ayah, we only force people to pay money if we’ve proven they owe it; here, the authoritative views that this was a sale give the seller reason to say he’s not liable unless he was negligent, even if theconsensus doesn’t agree.)

His first strong claim is that local custom considers marking a barrel, and signing as its owner, as a full sale. The Gemara speaks ofsitumta, which includes any form of sale that local custom ratifies [a contemporary example is handshake deals that are considered fully binding and therefore count as such in halachah as well].

The buyer could counter that Sema to Choshen Mishpat 198;7 and 201;4 held that when money switched hands, the rule didn’t apply. That’s because the Gemara tells us Chazal negated money as a form of acquisition, for fear that a seller would tell a buyer, sorry, your merchandise was lost in a fire (as happened here, but the Gemara seems to have worried the seller wouldn’t bother to try to save the items, or would decide that of the many barrels of schnapps he owned, the ones that burned were the ones he had decided should belong to the buyer).

Sema held that that worry applies wherever the buyer has paid, even if other forms of acquisition were used as well. In his view,Chazal uprooted any such transaction, holding off acquisition until the buyer took meaningful possession.

Following or Circumventing Ordinances of Chazal’s

Chatam Sofer understood Sema’s view to rely on another opinion of his, that a buyer cannot decide he wants to create a full acquisition by money alone. While Torah law allowed money as a form of acquisition, Sema held (in contrast to Rema) that Chazalruled it out completely, even if buyers and sellers wanted to make a different rule for their particular case. (Shach held this was true of all of Chazal’s financial regulations, Chatam Sofer tells us).

Chatam Sofer argues that this misunderstands the reason Chazal removed the possibility of money as a form of acquisition. In his view, the worry over the merchandise getting burned was one part of the story, but the reason the buyer wanted to pay was to have the reassurance that he wouldn’t lose his opportunity to secure the merchandise. For that reason, Chazal created alternate forms of acquisition, such as lifting the item (hagbahah) even while standing within the property of the seller, or meshicah, drawing the item within one’s personal orbit.

Once those possibilities existed, if the buyer chose to pay the money without taking possession, that’s his problem. Nor is it similar to where the buyer makes it a condition of the transaction that money should effect the purchase, since Chazal specifically and explicitly ruled that out (money can never effect a transaction, because that’s what Chazal said; but if there’s already a transaction for other reasons, it’s the buyer’s problem that he paid before taking possession.)

The same logic applies to signing barrels; since that is a customary form of sale (as Rashba wrote, that’s an example of minhag oker halachah, where custom supersedes ordinary halachic standards), the buyer’s decision to give the money is his problem, not the seller’s.

While the buyer has a good claim—he can say he’s following Sema, who in turn was following the view of Rivan in a Tosafot—the seller has authorities upon whom to rely as well.

Whether Transactions Happen Even If We Don’t Mean Them

That’s especially true since Tur, Shulchan Aruch, and Rema all seem to see measuring out the merchandise as effecting full purchase. While measuring it, the buyer must have lifted it at least a tefach, which constitutes a purchase even when the item is contained in utensils that belong to the seller. Of course, we could argue that the buyer never intended that lifting to be an act of purchase, since the signing of the barrels was. Or because, as Sema said, money changed hands.

On the other hand, Nimmukei Yosef held that hagbahah is a Biblically established form of transaction, and therefore not amenable to people making conditions about it. Such that when the buyer lifted the items, they became his, fully; Rashi disagreed, however, and thought that people can make a condition that even such a transaction doesn’t work.

Once we have significant dispute on the matter, we cannot say the seller is so wrong that he must clearly repay the buyer. (This is an aspect of hamotzi me-chaveiro we may not always realize; to take money away from someone, we need proof beyond reasonable doubt—as long as the person in possession of the money has a valid claim, even if the majority of authorities reject it, we do not let ourselves take money from that person. It’s not what we know, it’s what we can prove.)

For all that the buyer is clearly losing money here, and has many good claims why that money should be his, there’s enough of a counterclaim that the seller need not add to his loss by compensating the buyer for the purchase price of the schnapps.

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