Page:Jewish Encyclopedia Volume 1.pdf/443

395 THE JEWISH ENCYCLOPEDIA

395 land by the iiaynicnt Ifii ilccil is

iif nicmcy <>r by lakiiif; a writby Ihc TuIiiukI friim the iiiciclcnls

ilcrivcd

ri-l:ilc(l ill .Icr.

Acquis!tion of

11

1

xxxii.

tspi-ciiilly in tin'

".Men sliall buy Ileitis for and subscribe the deeds and

ll maybe reiimrked that lanirua^e the sealing of a wrilleii iliiciiineiit {h/k tii i- <iv yi im-dufi neither more nor less than the siihseription liy the witnesses. No "si'alinj; " of thedi'cd of eoiiveyanee, however, is re<|iiired in any of llie la.s.siijies of the -Mishnah or I5aniila which treat of such (leeds; thoujj;h such attestali<in is conleiii|ilated smuelinics (see PuioiiITIi;s). Wliilc the |iidc( ediiiirs discribeil in Jer. ...ii. fl-14 imply a custom of having; a copy of a deed for land at some public or secret |ilace (a custom equivalent to tlu' modern law of recordin;; deeds), the Talmud shows only slight traces of this useful institution: and these point to Hoinaii intluence (Kid. iv. .1; Yer. M. K. ii. 81//; (Jit. 44": Tosif.. H. I!, viii. 2: see las trow, "Diet.." uiidcr the words '3-1X and '3"lj;). It seems that while a deed is always siiMicieiit to coniplele a f;itt of land, it is not sullicieut of itself to close a Siile of land until the price is paid, except in a case in which the owner "sells land on account of its badness"; that is, in order to get rid of it. and is therefore willinj; to risk the buyer's sol-

Land.

seal

llieiii

"

in Taliiiiidie

]

.

vency ralliiT than give him time to reconsider. Neither the Talmud nor the later standards undertake to deline what is meant tiy a sale of land on account of its badiH'Ss. But where the seller, vipon giving a deed of conveyance, takes a bond for the whole purchase money, or for the unpaid part; or when 111' stales in the deed that he has received such a part and remains a creditor for the balance, lie .shows that he does not insist on cash in hand, and the .sjile stands, no matter how long the pavmeiit is withheld Kid. ',><)./ I!. .I 7T/i. <l »y. liul "a partial (

).



of the iiurcha.sc money, unless it be expressly slated thai Ibe rest is hi'ld over by the buyer as a loan, with or without a written conveyance, entitles tin: purchaser oidv to a proportionate sliarcof the land. This share is taken from the most desirable parts ('iililil). or from the lea.st desirable parts {zihhurit). according as the seller or the buyer demands the rescission: he who declines to carry out the eoiilracl has the "lower hand" (ih. I'h). When the sellir, after receiving part of the price, continues to dun the buyer for Ihc rest, it is proof that he <1(M'S not consider the transaction closed, except in till' case already mentioneil, where he has .sold the lield on account of its badness (ih.).

payment

Till* T"siinHt.s on IlilM piiMSJaji' ri'inark timl h) the prartlse of tliiii' these illsMiii-tlotis were tln>|i|)<-r Malrnonhles anil the " Hosheii .Mlshpat." niallllaln the rule alinllt the seller Who. Ill llle'worils of the Till'' lllliil. "tfoesotit and In after his liioiiey.

ttieir

Payment of the purchase-money

is siiflicicnt

by

bind boih parties, but only in countries in which il is the ciislom not to writu of deeds for the transfer of land: where Possession, the custom rei|uires such a deed the money payinenl alone is insullicieiit (Kill. «(li/). Bui Ihc taking pos.sessii>n by the )inr chiLser seems to be a full siibsliliile for the writing of allied. When possession is taken in the grant or's prcs«'nce, his <onsent is implied; otherwise he must have given leave by such words as, "'I'ake pos,session and aci|uiie." Closing a fence or making a gap in it no mailer how small or widening a gap, with a purpose of improviiiL', or linking up a liouse, is an act of possession and where llie griinlor <leliversthe key of a house, or the liuckct of aci.stern. which lie has sold, such delivery is an atitliori/.ation ilsi'lf

(Mishnah IJ. B. iii. 3. (!eni. 524 et and down over a field docs not secure possession of it but where a footpath is sold, walking on it isenougli; for this is its only use (B, B. to take pos-scssiim

III

Modes

—

—



AValking

Iff/.).

uji



h verse:

iiioney,

Alibi Alienation

lOO'i). Stony, uncnclose'd land, unfit for tillage, may be aci|uired bysjueading fruit or letting one'scattle run over it (ihit/. 29//). Uf cour.s<', to sow or to reap or to gather fruit is an act of pos.session (iljid. 36A).

Where several fmn'els of crmiinii are sminlerl tocethpr. thoiieb they lie In several loumrles ami of the most illverv- klmls or ileaiTlplloiis, the ai-t of taking; ixis.ses.slon of one pan'ul (fives the purihiuser title to all, and hinds the hareain as to all. However, If thi'

Ket.

parrels are sold for iiiiiney. It seems that the prlee of all el.si- oiilv those thai are paid for will pass (Tiisef., 1: Kid. S7(l ,1 wi/.j.

be paid,

iMiist

II.

The most ciTcctive manner of acquiring land is the so called "purchase by kerchief" [kiiiynn loiihir), under the rule given above, that where one thing is made the price of another, he Acquisition of the one changes title in the other also. Now as an "impleI

ment

"

may

be acquired by lifting it, it can easily lie arnuigid liiat a kerchief or any other ob,ject, such as a needle, even if worth less than a perii(ah (llie smallest coin) be made the nominal consiileralion, the real price being paid as the parties may agree. The custom was known also in the old (tirnian law, under the name of yfniitiljiriff (grasping the mantle). It is derived by the Talmud i'rom the pas.sjige in IJuih, iv. 7: "to contirm all things, a man plucked oir his shoe and gave it to his neighbor." The change of ownership in the land being Ihuseslablislied, there was a fouiidalioii for the promise of the buyer to pay a fiirthersum. Iliereal priceof the land; and the bargain was at once closed, so that neilher sidecould withdraw (B. M.4T<. Only "im|ilements" can be used thus not coins nor "fruits" (x)W), the latter term comprising grain and other eatables sold (//'/(')

—

—



by (piantity

(////(/.

Theownerof

Kiil. 2S//».

may sell or give it toanother for a term of years an arrangemint which dilTers from a lease in so far as there is no slated Sale rent or he may sell and give its prodLimited by lice for a number of years. In the former case, the grantee may "build Time. land

—

—

and tear down,"

or. in the language a tenant "withoni impeachment or waste"; in the latter case, he is on the fooling of an ordinary tenant. And just as land or its produce can thus be given for a slated time, one or more fruit trees, or their fruit, can bi' thus sold or given. But the land or trees, or their prinluce or fruit, after the term of years, must be reserved to the original owner or his heirs. Thegnintee can not alicnale any unexpired time to a thin! person; for the use of the land or ils produce from and after a lime in Ihe future, beinga " tiling that has not come into exislence." can not be the siilijecl of sale or gift Maimonides, " Ililkot .Mekindi."xxiii.). Hence, w hat the English lawyer designates as a "strict settlement. "and the layman calls "lying iipaii ratal*;." ia ""'~ impossible under the .Jewish law. botulmanl is in the main ac.. slave (Canaaiiile quired like land: and what in I he case of land is said in wriling or payinenl in money, would as to a ll apply also to the purchase of a slave, except that there could be no apporlionmeni of the ihing boui^ht to the part of the price that is paid. But the form of

common

of the

law. he

is

(

I

taking

pos.scssioii (lia/al>ah)

—

— which

is ilu'

ihinl

man-

ner of .'Vcquisilion natimilly dilTers from that in the Any .service rendered by the iHindman case of land. to the buyer, such ascarryingarlieles for him, dre.s.sing or uiidres.4ing him, rubbing or dring him after a Imlli, is sutllcicnt. Tlie iM^st opinion iloinestir

In

Uint Mftlntr or piilllnir. ns In the rnat^ of llfeleiw nnluml.s, l.s not applhiible to t

anlnmls or of