Translation:Shulchan Aruch/Choshen Mishpat/211

Paragraph 1- An item that is not in the transferor’s possession cannot be acquired and it is as if the item is not yet in existence. How so? If one said, “what I inherit from my father or other person I inherit from is sold to you,” “what comes up from my net in the sea is given to you” or “when I buy this field it is transferred to you,” he has not said anything. The same applies to anything similar. There are those who say this only applies where the transferor did not specify. If he explicitly said that this field that he is inheriting from his father is sold to him, however, he would acquire the field. See above 209:5.

Paragraph 2- If one was going to inherit from a deathly-ill individual who was beginning to die and the inheritor wanted to sell some of the properties in order to be able to spend on the burial-expenses, because the son is poor and if he were to wait until death and then sell the deceased would linger and be degraded, the Rabbis instituted that if the son sold and said “what I inherit from my father today is sold to you” the sale would be valid. We are not concerned if he sold a little more than was needed. If he is unable to just sell a little, he can sell the amount necessary in order to complete the sale. Similarly, if a poor fisherman does not have what to eat and says “whatever comes up in my nest from the sea today is sold to you,” the sale would be valid because of concerns for his ability to live.

Paragraph 3- If one’s father was dying and did not have money for burial-needs and the son sold to his brothers for the burial needs and said “what I inherit from Dad today is sold to you for such and such” and the son died while the father was still alive and then the father died, the grandson may remove the property from the buyers and does not have to return the money because his father sold something that was not yet in his possession and the properties ended up in the father’s possession and this grandson can inherit his grandfather.

Paragraph 4- There are those who say that if Reuven borrowed from his father, Yaakov, and subsequently sold his properties, and Yaakov and Reuven subsequently died, leaving Chanoch, Reuven’s son, as the inheritor of Yaakov’s loan document, Chanoch may seize the properties his father sold because he can say he is coming via his grandfather that he inherited.

Paragraph 5- If one writes his properties to his son for after death, the actual property will belong to the son from the date of the document while the fruits will belong to the father until he dies. The recipient cannot sell the fruits so long as the donor is alive. Rather, he can sell, effective today for after death of the donor, the rights of the buyer to actual land immediately and the rights to the fruit after the donor’s death. The buyer will acquire those rights even if the recipient died while the donor was still alive because there is no issue of transferring something not yet in existence given that the actual property belonged to the recipient and the rights to the fruits the father had does not qualify as rights on the actual property.

Paragraph 6- If one gives real property to another and put dinar or other movable items on it, the recipient would not acquire them unless the money or movable items were in the donor’s possession. Thus, the recipient must bring proof that the money and movable items that were transferred to him were in the donor’s possession at the time of transfer. See earlier 60:6.

Paragraph 7- If one gave a deposit to a third party, he may transfer ownership via sale or gift because a deposit remains in its owner’s possession and there is a presumption that the item is still in existence. If the guardian denies having the item that was deposited, the owner cannot transfer ownership because it is as if it was misplaced and not in his possession. With respect a loan, however, because a loan is given to be spent, it is considered not in existence and a person cannot transfer ownership other than in the presence of all three parties If the loan was documented, the lender can transfer the document via writing and handing over because there is something that can be handed over to acquire the rights contained therein. If Reuven borrowed from Shimon and made an unconditional sale-document, effective now, on his field, and gave it to a third party, Levi, on the condition that he give the document to Shimon in the event he does not pay back at a certain date, and before the time arrived Shimon sold the field to Yehuda, and the time arrived and Reuven did not pay Shimon back and Levi gave the document in his possession to Shimon, Shimon’s sale would be valid, even though it was before the deadline.