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397 THE JEWISH ENCYCLOPEDIA

397

give" [cancel] the debt; and the dehUir might claim the benefit of such a release. Iiecaiis** hf wiw " Nxind " onlv to the orlclnal. not to the new, rreilltor. Ilenrc, some of the later nilihls siiiftested that n clause he lnsen«Ml in even.' Itond to the

etT«'<;t

that

the debtor should In* iHuinil not only to the creditor, but to any one deriylntr rlKhls (roiri hlin thus n-nderlni.' it a note |iaynlile to "A. I!., or order." yhich would U- in measure neirotiable. (Note of Itabad ou Malmonldes, " Ullliot Meklrah." vl. 12.)

ii

Another ^ift

yyiis

nf

viiy fiiuiiil

(lis|)osin<r

in

of claims by sale or

iiiaxiiii

tlii'

iihove

L'iveii.

tliat

things of vuhic can he iimdc to pass with land or slaves. IIcucc a (lebl. no matter how large, secured by a bond or an open account. niii;lit Ijc made an incident to a plot of land, no matter how small and if the i)roi)cr steps were taken to pa.ss title in the lot (for instance, by occupation), the title to the debt %voiild jiass also. Iliomrh neither the debt nor the

deed

cvideiicitii:

the laml (B.

15.

was

it.

77/,

in

anv way coimccled with

i.

The "power above." community

vliicli meant the representaof Jenisjileni. whenever biiyinj; on behalf of the Sanctuary, cotild Acquisipurchase both land and chattels withtion by the out taking possession, either by the Sanctuary payment of the price or even by word " This o. isa burnt -olTer(Heljidesh). of Mioulh. ing.' 'This house is consecraled.' are effective words, ihough the objects be at the end of the world " (Mishnah Kid. i. (i. Gem. 'iX/i et seg.). Orphans under guardianship are, as to their inherited goods, to some extent governed by the same rules as the Sanctuary, and even have certain Jirivileges, not discussed liy the Talmud as belonging to the Sanctuary. If, after the orphans Privileges have sold "fruits" but have not yet of received the money, the value of the Orphans, "fruits" rises, the orphans may set the sale asitle; for their goods can be acquired by ]>ayment only. Should the goods fall iti price, the buyer who ac(|uired them in the usual way must keep them. If the orphans have received their money, and the "fruits" liave risen in price before removal, the sellers may reconsider, like adults. Should the price of the " fruits " fall, then the buyers may withdraw, but remain under the imprecation mentioned aliove. " He who collected." etc. Again, w hen the orphans have bought commoditiesand taken pos.session. but have not yet jiaid the money, and the commodities rise in valiK'. the orphans are no worse olT than others tind m.-iy insist on their contract. On the other hand, should the commiHlitiis become cheaper, the orphans may not wilhdraw; for under

tives of the

'

such circumslaiici'S no one would sell commodities to them on credit. Lastly, if the orphans have paiil the prici', but have not taken ])ossession, they may with-

draw

like others, in case of a fall in price. I5ut if the connnoditic'S liavi' risen the seller may retire, and silf fertiK! usual imprecalion for. shouhl the rule be li.ed that the orphans gain title by paying the price, the .sellir might pnli nd Ihal Ihegooilsliad since been lost by fire or been stolen by robbers while in his pos.se»sion (Maimotiides, " llilkol Mekinih," i.v. 3-(i). (|Uestion of priority may arise, when the same land has been sold, or disposed of by donation, to two or more parties. Among the early Amoraim there arose a dis|)ute whether the parties shoulil divide or the judge should use his discretion (nhinlii (It il< 1 1/1/4 1 III) to decide till' priority of the claimants: the lattir opinion prevaileil. so that only in theab seiiee of such evidenci' will the luirties ftuestion of be calleil upon to dividiv The de Priority, cision will not be delermiiied .so much by the evidence of the w it ne.s.ses whose attestation forms the seal of the deed, as by that of the witnesses to its tleliverv, if such tiierebe; for

A

Alienation Aliens

deeds take effect not from the time of attestation, but from the time of delivery. Where the custom of marking the hour of delivery upon the deed obtains, a ileed bearing the hour will i>revail over the deed of the siime day without the hour; and a deed bearing the day and month will prevail over the deed bearing the month only (Kit. i)-4(( ft neq.). According to the standard codes, a deed of gift will be rejected when in contlii t with a siibsei|Uent .sale of land, unless 't has been made ]iublic. so as to warn all other |)ersons against purchasing the subject of the gift. A deed of gift is under suspicion of fniud it contains words of request to the attesting witnes.ses to publish the gift widely: and even as between two deeds of gift the second should be preferred when it contains such words and is made public, while the tirst is kept si-cret or does not contain a request for publicity (Maiinonides. "llilkol

unless

Zekiyah u .Mattanah, chap! v. The law of conditional sales or gifts is rather obscurely stated in the Mishnah (IJ. M. vii. 11), and the Geniara upon it (94n) is too scanty to elucidate it, Rashi {ml hrum) thinks that an Conditional impossible condition is to be di.sreSales garded. even if named as preceding the or Gifts, act. .Maimonides (" Hilkol .Mekindi." chap. .i.) derives from the Jlishnah '

i.

the following rules; When one grants either land or goods, and conditions arc' set up by either the grantor or grantee which are possible of fultilment. then if the conditions are fullilled. the object |ias,ses; otherwise it does not (//;. .i. 1). This holds, however, only when the gnuit is made in the prescribed wjiy (deed of land, moving of goods, etc.). and the grantee lia.s to ])erform the condition thereafter: but if the title is not to pass at once, and it is agreed that it shall pas.s when the condition is performed, it will not pass even on performance; for there is an "insincere promise" (Asm.kt.k). and the title can not pass, as it was not intended that it should (ili. xi. 2). For instance. A has sold or given his liouse to B, on condition that li shall, ou a named day. go with him to ,Ierusiilem and 1! has occupied the liouse: then, if B goes on the tlate siiecilied. the house is his. But tells B. "If you go to .Jerusjilem. I will giviif you the house, or si'll it to you for so and so much." and B goes and thereafter occupies the house. Ilie sale or gift does not take elTect (iV<. .i. 'A). Hence where earnest -money is given to bind a bargain, with the understaiiiling that the giver shall forfeit it if he withdniw from the bargain, but the reci-iver shidl return it doubly if he withdraw, only the former part of the agreement can be carried out. and not the Though the conditional agrii'inent latter(iV). .xi. 4). for a tninsfer in the future be made Iwfore witni'S.st-s or by iIiimI in writing, itcan not l«' carried intoelTeet

A

((/'.

xi. 0).

The subject of this article In dlwu.iaml by Malby ilio luonldes In tlilkut Vrliirith and Hilknl ZrAi'i/ii/i iinn<>tat<>nt >>f the If'vhrti Mi.ttnnt{, ii IsU-

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