Page:Jewish Encyclopedia Volume 1.pdf/444

396 Alienation Aliens

THE JEWISH ENCYCLOPEDIA

slave Inateitd i»f the luiyer Uftlnt; Ills new slave as an act of possession. It would b*' itiore proiwr for the slave to lift and earry liLs new niiLsi*>r ils an aet of service. Hut the slave nuiy. like 'land, lie ar»tuln'd hy the fonn i>f Imrterlnp htm for a " kerchief " or other hniileinent Hild. i.'M. Andaslave. like land. Is de**Hieil a thln»; " iNttind for debt": hcnt'e. other thlniri of

value

may be

The the

tninsferri'd with

him

tu>

Inddcnus.

niU' that niovalilcs {mftnltethi do not pass by of the price in iiionev, Imt only by " lift-

checks buy coins";

tint

be clinched (.Mishnah The (iemara

inversely, the bargain can not

15.

M.

iv.l).

an older opinion— evidently in<-onsistent with the Mosaic law -that, as lH'twe<*n gold and sliver coins, the former are to be c*insidenfd money, and the latter " fruits," i.i, commodities. But gold or silver bar^i are commodities for all puriKises. (44L 4Ti) spoken of as mere rabbinical iiislitiilion. They a explain tliat the Toiah ;;ives a binilirii;- elTeet to the payment of the price; hut that thi' early sa;;es feared that when the price was jiaid hefori' delivery, room would be left for fraud, as the seller after I'eceivinir his nioney might claim that the buyer's goods had been bnrned or otherwise destroyed in his (the seller's) barn or warehoiisi', while already at the buyer's lisk. Hence, in an iiniisiial case in which such fniiidnlent practise is not to be feared, delivery is not re(|iiired; for example, when the seller is in debt to the buyer forthe prieeof another conunodity (not. Iiowever, for money loaned), an oral .sale in satisfaction of this debt is held binding without delivery (//'. ilaimonides, " Hilkot M<'kinih," v, 4). While liftini; is snlheient in all places, delivery to the buyer drives title only when it takes jilace either on the public highway or in a courtyard not belonging to eithei and the buyiT's own act of moving {>ii(.i/iikii/i) gives him title only when it is done ujion the sidewalk, or in a courtyard that belongs to both for in the act of moving, the buyer brings the article into his own domain. When goods of any kind are already on the grounds of the buyer, the bargain itself, price and all terms being ti.xed, is sutlicient to change the title and bind all (larties: when the goods are on the grounds of the seller, or of a warehouseman of the seller's choice, the buyer can attain the de.sireil end by renting the place upon wliieli the goods are placed. He thus comes into virtual jiossession (B, H. »r„i. Kid. 2.%, 2Touirht. a formal renting of the place on which they are found is the eaj*lest mode of closinp the banrain, a5 the '' purch.t-se by kerchief " seems not to have been in voeue in dealing with chatt^'ls. The Talnnidic passage as to the re<)uisites for changing title In a ship (H. B. 7tJa ct se'j.) is rather confused and the commentat^irs are not agreed either as to its true meaning or as to which of the disputants is right and should be followed. It seems clear (hat when the ship is in deep water, in the open sea. delivery is sufllt-ient l)Ut It is not clear what degree of removal is required when it is In a narrow, half-private inlet comparable to a sidewalk, or when It is drawn up on land.



Goods may be land.

S99

sold or given away as an incident to (Kid. 26A) mentions a case that

The Talmud

Imppencdin.Ierusalem wherea wealthy person wished to give to a fi'iend goods of great value in ditferent parts of the country. I'pon the advice of competent lawyers that there was no other way to bring about his purpose, he went with his fiiend to a lot which he owned beyond the walls, and. announcing bis intent to give him that lot and the goods named, put him in occupaticni of the lot, which thus included the goods. A written deed tor the lot and the goods woidd ]U'obably have been just as effective. As movables are not acquired by payment of the price in nioney, a (|uestion arose over the exchange of two kinds of money, and it was held that the more cun-ent

among them

is to lie treated as the other as a commodity the delivery of the latter therefore binds the bargain, not the delivery of the less current "buys" the more cuiTent.

Exchange money, of Coins,



former. The Tlius " gold buys silver copper buys silver bad (i.e. worn or uncurrent) pieces buy good pieces; bath;



,

With certain exceptions which nece.s.sity iias ongrafted on the rule, things not yet in existence, or which do not yet belong to the person attemiiting the sjile. iiuiy not be sohl (.see AccKrr.vNCK). Things of nndetiiu'd i|Uantity. not yet weighed or measured, may be sold, such as a field of growing wh<'at, a stack of wine jars, etc., subject, however, to recourse for overreaciiing (,see vkuuk.ching); for the law does not allow chancing bargains. But whin the nature of the objects is unknown to either of the parties, e.ff., "I sell to you whatever this house contains," the sale is void; though the goods may have been formally "moved" to satisfy the renuirements of meshikah.

Although a trade between buyer and seller could not be enforced after the money had been iiaid but the goods not been delivered to, or reSanctity of moved by, the buyer, it was deemed Contracts, binding in the forum of conscience, as the .Mishnah says (li. M. iv. 2); "He who collected Hisdemaiids from the age of the Flood and the age of the I)is])ersion, will hereafter collect His demand from the man w ho does not stand by l']iipna pi-eee<lent given in the Talmud, his word." the custom grew up that in such cases, the party taking advantage of the rule of law, by asking the return of the piice, or by refusing to deliver the goods and tendering back the price, would be summoned before the judges, ae.d be .solemnly informed by them in the above words: "He who collected." etc. (to which is added. I?. M. l.M./; "and from the men of Sodom and (iomorrah and from the EgypAccording tians who were drowned in the sea"). to the better ojiinion this was an imprecation, the public warning heing evidently meant as a punishment, and in the hope that the fear thereof would induce men to caiTV out their contracts of .sale, though a rise or fall in the price of the commodity (such as salt or wine) might cau.se loss (B. M. 48i). The old .Mosaic law. like the early Roman and early common law. did not recognize tla^ .sjde or transfer of a claim to a third jierTransfer of son. But the Scribes, like the Bonian Claims.

and English jurists, devised ways and means of overcoming this defect and

of treating claims as subjectsof gift or sale ((lit. 13& An old Halakali establishes the validity of the transfer in one particular case known as the "meeting of three." This occurs when the creditor, the debtor, and the proposed assignee are all together: a transfer made even by word of month is then binding. This rule is stated as if it were arbitrary and rested on traflition ahme; but it is thoroughly logical. For if the debtor is present and assents, there is. in fact, a new agreement on his part to jiay his debt to the a.ssignee; whili' the old creditor releases him. and the new promise is based on this release. But when the three do not meet, a delivery of the l)ond or written obligation (xhtlnr) for the debt is instiflicient to change the title; for the bond is not the debt, it is oidy evidence thereof. The creditor, besides delivering the bond, should give to the assignee a written order on the debtor; and thus the transfer is said to be made by "delivery and writing" (B. B. 7.5i, 77rt). et .w/.).

But as the Mosaic law knows nothing of the sale of rlalms, the old creditor and his heirs would still have the power to " for-