Kinyan Peirot

Bava Batra (8:7) | Yisrael Bankier | 7 days ago

The eighth perek of Bava Batra deals with the laws of inheritance. The Torah lays out the legal order of precedence. We learn in the fifth Mishnah that if one wishes to nominate heirs of his estate in contrast to the laws of the Torah, his stipulation is disregarded.

The Mishnah however teaches that one can gift their property during their life time to individuals such that it will be completely owned by the beneficiary only after the death, even though it appears to contradict the Torah's instructions. The seventh Mishnah teaches that if one wishes to, e.g gift property to his son in this manner, he must say that he giving it to his son "from today and after death". The stipulation is understood as meaning that he is transferring the ownership of the land to his son now, but retaining the rights to the "peirot", produce of the land, until after his death. The Mishnah continues that from that point, neither the father or son would be able to sell the land and have it take immediate effect. The father would only be able to sell his right to the peirot. After the father's death, the son would then seize the land from the purchaser. Similarly, if the son sold the land, his purchaser would only be able to take the land after the father's death.1

Considering the case where the father attempts to sell the land, what is the law considering the transaction? Once it becomes clear that only the peirot were sold, can the purchaser retract? If the purchaser is still satisfied, can the father go back on the purchase?

The Mishneh Lemelech (Zechiya 12:13) cites the Tur who rules that only the purchaser can retract, since the purchaser has a valid argument – he wanted to purchase the land entirely. The father however, was aware of his rights to the land and what he was selling at the time of the sale. If the purchaser is subsequently content, the father is committed to the sale. This is also the opinion of the Ritva.

The Rashba however argues that the sale is only binding if the father only sold the peirot. If however he attempted to sell both the land and peirot, the sale is considered invalid with respect to the land. The peirot, in the context of the sale, were only included as being part of the land, so even the father can go back on the sale of the peirot.

The Mishneh Lemelech however resolves this debate by differentiating between two different case, explaining that this case is similar to one of ona'ah (fraud). If the purchaser is happy with the original price albeit now for the peirot alone, then, like the Ritva explains, we disregard the father's opinion. It is comparable to the case of fraud where it is the choice of the defrauded party alone to undo the sale. If however the purchaser still wants the field for the peirot, but only at the market value, then the sale is now being renegotiated. Consequently, like the Rashba explained, the father can retract on the sale.

The Mishneh Lemelech however continues that the Rashba however appears to contradict himself. The Rashba rules that in the case where one sold land according to its dimensions, and it was later discovered that half the land was stolen, the sale stands with respect to the valid part of the land. Why does the Rashba rule differently in the case? Why can either party not retract in this case also?

The Avnei Milui (90:23)2 answers that the two cases are different. In our case, the issue is not the purchaser was misled with part of the sale. As we explained the Rashba above, the land was sold alone. The fact that the peirot were part of the original sale was not because it was stated as a separate component of the sale, but rather because the land itself being sold implies that peirot are included. Consequently, once it is discovered that the land could not be sold, the peirot were absent from the sale as well. In the case of the land sale, where half had been stolen, each part of the land mass was sold. Consequently, once discovered that part of the land could not have been sold, the sale of the remainer would still apply.


1 The Tosfot R' Akiva notes, that this would be the case even if the son died prior to the father.

2 Cited by the Yalkut Biurim

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