Translation:Shulchan Aruch/Choshen Mishpat/212

Paragraph 1- One cannot transfer ownership via sale or gift on anything other than something that has substance. Something that does not have substance, however, cannot be acquired. Thus, if one transfers possession to another of the right to eat the fruits of this tree or the right to live in this house, the recipient would not acquire until he makes a kinyan on the physical house for the purpose of living there or the physical tree to eat its fruits. If one says so and so should live in this house and did not set an amount of time he would live there, even one moment would qualify. If a document states that Reuven gave the holder the right to live in his home and they made a kinyan, we would explain the document as meaning they made the kinyan in an effective way and he transferred the physical house to live in. All the more so is this true where they repeated the kinyan on the bottom of the document, because they certainly wrote this to bolster the holder’s rights and they made the kinyan in an effective way. If the document just says that they made a kinyan giving him the rights to live in the house, it is of no effect because in such a case the primary kinyan is referring to the act of living there, and the act of living has no substance. If a document did not have a properly written kinyan on the fruits, but just said that the transferor is giving him the right to purchase the fruits as the Rabbis have instituted, the transferor has admitted that he transferred as the Rabbis instituted and we can explain his words that he gave it in an effective manner.

Paragraph 2- Similarly, if one sells the airspace of his ruins or his courtyard to another, it would be of no effect unless he transferred the actual courtyard for the right to create protrusions. The same applies to anything similar.

Paragraph 3- If he sold a house, tree, ruin or courtyard to another and retained for himself the right to live in the home, to eat the fruits or the rights of the airspace of the ruins or courtyard, however, it would be effective because it is as if he explicitly retained the area for himself. Even if he does not mention the courtyard at all, but just sold the buyer a house and said it is conditional on the upper story remaining his, we would say he has retained the area in the courtyard to create a protrusion from the story to the courtyard. If he retained rights for himself as well as a third party, we would say just as he generously excluded for himself in an effective manner, so too has he excluded for the third party because he certainly intended they both be excluded in the same way.

Paragraph 4- If one sells the physical real property for a set time, it is a valid sale and the buyer can use the actual property as it if it were his and he can consume the fruits for the duration of the sale. At the conclusion of the time period he would return the property to its original owner. What difference is there between a case where he sold for a set time and one where he transferred the property for its fruits? One who acquires for the fruit cannot change the actual property nor can he build or destroy, whereas one who acquires for a set time can build, destroy and do whatever he would be able to do in a permanent sale for the duration of the sale.

Paragraph 5- What difference is there between one who sells a field for its fruits and one who sells the fruits of a field to another? In a case where one sold the actual fruits, the buyer cannot use the field at all, even if just to enter, other than at the time the fruits are brought out, and the owner may use the field as he wishes, whereas if one sold a field for its fruits, the field-owner cannot enter without the buyer’s consent, and the buyer can use the field as he wishes.

Paragraph 6- What difference is there between one who acquires a field for its fruits and one who rents a field from its owner? One who acquires a field for its fruits can plant trees or greenery or leave it barren whenever he wants, whereas this is not true in the case of a rental, as will be discussed in Siman 320.

Paragraph 7- The laws of consecrated items, gifts to poor people and vows are not the same as where a lay person acquires. If a person where to say, “whatever my animal gives birth to should be consecrated to the treasury,” “should be forbidden to me” or “I will give to charity,” although it would not become consecrated because it is not yet in existence, he would be required to keep his words as the verse states, “whatever comes out of his mouth, he must perform.” Thus, if a dying person instructs and said that whatever this tree produces should be given to the poor or all income from this house should go to the poor, the poor would acquire. There are those who say that hekdesh and charity would not acquire anything because a person cannot consecrate something not yet in existence and consequently his words are meaningless. If he said “when my animal gives birth” or “when this tree produces fruit” or something similar, or “I will give to hekdesh or the poor,” however, he would be obligated to fulfill his words because he must keep his vows. This is only true if the individual who took the vow is still alive. If he already died, however, his words are of no effect because he is not here to fulfill his vow. The second opinion is the primary one and this is the appropriate way to rule. See later 252:2. If one swore to perform a sale, see above 209:4.

Paragraph 8- If one purchased real property with the intent to consecrate it but did not verbally say anything, there are those who say that once he has made up his mind to give it to charity he is required to give it. There are others who say that although the verse states, “all those whose hearts donated brought burnt offerings,” we do not deduce the laws of unholy items from the laws of holy items. Today, all of hekdesh has the status of unholy items because there is no hekdesh for the treasury and it is all just charity. Thus, if one did not verbalize his donation, his thoughts are of no effect. One should be stringent like the first view. See Yoreh Deah, at the end of Siman 258.

Paragraph 9- Similarly, if one said, “when I acquire this land it shall be hekdesh,” it is of no effect because a person cannot consecrate something not yet in existence. If he said, “when I purchase it I will consecrate it or give it to hekdesh,” however, it has the status of a vow and he must fulfill it. This is the view of the Rosh, and is at odds with the Rambam, who holds that if one said “when I acquire it it shall be hekdesh,” he would be required to keep his word, as his view was stated in seif 7. The words of the Mechaber, who rules above like the Rambam and here like the Rosh, are incorrect.