Sale.

By: Joseph Jacobs , Lewis N. Dembitz

—Of Land:

The steps by which the title to land is changed in a gift or sale have been shown under Alienation . The conveyance might be by deed ("sheṭar"), for the requisites of which see Deed . It remains to be shown how the object conveyed is described, and how the words describing it are construed.

It was so usual for the ownership of houses to be divided (mostly among coheirs), one man owning the rooms on the ground floor and another the upper story, that the maxim of the Roman law "cujus estsolum, ejus est usque ad cœlum" was not applied to buildings. Two chapters of the Mishnah (B. B. iv., v.) define the meaning of words applied to the objects of a sale. Such of these definitions as refer to land or to things annexed thereto are here given, though most of them are only of archeologic interest.

Inclusive Sale.

• (1) He who sells a house ("bayit") does not sell the separate wainscot walls, nor a movable interior closet, nor a roof with a railing more than ten hands in height, nor a dug cistern, nor a walled cistern. In order to include these, the words "from the abyss below to the sky above" are necessary, "depth and height" not being sufficient.According to the prevailing opinion of R. Akiba, the purchaser, if the cistern is included, has the exclusive right of way to it; and where the cistern alone is sold, the right of way to it passes to the purchaser by implication. He who sells a house sells the door, but not the key; he sells a mortar attached to the ground, but not a movable one; he sells also the base for a mill, but not the hollow stone receptacle, nor the baking-oven or cooking-hearth (all these being considered personalty); but where the seller says "the house and all that is in it," all these things pass in the sale. Where one sells a "court" he sells the houses, cistern, pit, and cellar, but not the movables; however, if he sells "the court and all that is in it," everything is sold excepting the bath-house and the oil-press in the court. He who sells an oil-press (let into the ground) sells the "sea" (the hollow stone which receives the olives), the stone roller, and the "maidens" (the cedar frame on which the beams rest), but not the planks (for weighting down the olive-bags), nor the wheel (for turning the press), nor the cross-beam; but if the seller says "the oil-press and all within it" everything passes.He who sells a bath-house does not sell the shelves (for clothes), nor the benches, nor the curtains (? bathing-wrappers). If he says "the bath-house and what is in it," these things are sold, but not the pipes which conduct water to the bath, nor the stock of fuel on hand.He who sells a town sells the houses, cisterns, pits, and cellars, the bath-houses and dove-cots, the olive-presses and the "gardens and orchards" (?), but not the movables therein; but if he says "the town and all that is in it," even the slaves and cattle that may be in the town are regarded as having been included in the sale.He who sells a field or a vineyard sells the stones that are there for its needs, and the canes in the vine-yard (necessary to prop the vines), and the crops still standing, and a cane fence enclosing less than a "quarter" (see Weights and Measures), and a watchman's lodge not made of mud, and carob-trees that have not been grafted, and the young, uncut sycamores; but he does not sell stones not needed for the field, nor canes not in use in the vineyard, nor the crop that has been cut. If, however, he says "the field and all that is within it," everything is sold with the exception of the following: a place fenced about with cane and of more than a quarter's contents (this being considered a separate field), a watchman's lodge built of mud (it being deemed a house), grafted carob-trees or improved sycamores, a cistern or an oil-press, whether dry or in use, and a dove-cot. And, according to the prevailing opinion of Akiba, the seller must obtain from the buyer a right of way (to reach the cistern and oil-press), with the same incidents and exceptions as in the sale of a house.All these rules apply to the terms of a sale; but a gift is construed more liberally, so as to comprise everything in and upon the ground. Where brothers divide an estate, he who receives a named field for his share is entitled to everything upon it.

General Rule.

The rules here given for special cases may be generalized thus: Where a house, field, etc., are sold simply, nothing passes which bears a special name, whether real estate in itself or not, nor anything that is not attached bodily to the ground. If the words "and all that is in it" or "on it" are added, such parts as are always known by a separate name, and such movables as are not permanently on the place but are changed from day to day, are still excluded.

The dispute between Akiba and his contemporaries about the right of way turns on the question ( ib. 64b) whether the seller sells "with a kindly eye" or "with an evil eye"; that is, whether his words are to be interpreted so as to enlarge the scope of the sale or so as to restrict it. The former view prevails.

• (2) So far the Mishnah deals with the incidents of a house, court, town, field, etc. But B.B.v., § 4 presents the inverse case of the sale of single trees (this includes grape-vines), which may carry with them the underlying and surrounding land—an idea not strange in Syria, where even to-day single fruit-trees are often owned separately. With the aid of the comments in the Talmud (ib. 81-83) the law may be stated thus: "He who buys two trees in the midst of another man's field does not thereby buy the soil [R. Meïr says he does]. If the branches spread out too far, the owner of the soil must not trim them, though they shade his land; for by selling the trees he has put a servitude on his land. What grows out from the trunk belongs to the owner of the tree; whatever shoots come above the ground out of the roots belong to the land-owner; and, if the trees die, their owner has no further right to the soil. But when a man buys three trees, not less than four cubits and not more than sixteen apart, and placed in a triangle, he acquires the soil under them and a path around them wide enough for a fruit-gatherer with his basket. If the branches spread beyond this space, they should be trimmed. If the trees should die, the soil belongs to their owner, who may plant others in their places.
• (3) Executory sales, in which land is sold by measure, and has to be laid off, or buildings are contracted for by name, to be put up thereafter, have still to be considered (see ib. vi., vii.).

Measures.

"When one says to his companion 'I sell thee a named measure of soil,' and there are holes ten palms in depth, or rocks rising more than ten palms in height, these are not counted in the measure. Smaller holes or lower rocks are measured as part of the soil sold; but if the words are 'I sell about such a measure,' then holes and protruding rocksare all measured along with the rest" (thus the Mishnah; but in the Gemara this statement concerning smaller holes or standing rocks is limited as to quantity and position). When one says "I sell thee a named quantity [ e.g. , enough for a kor of seed, i.e. , 75,000 square cubits) chain measure," the seller, if he gives any less, no matter how little, must make a rebate; if he gives any more, the buyer must return it. But if one sells a named quantity "more or less," should there be a deficit of as much as one part in thirty, the contract is filled; if the difference is greater, an account must be taken. It seems that the naming of a quantity without adding "chain measure" is of the same import as if the words "more or less" were added ( ib. 104a).

Where an excess is to be corrected the buyer may return the surplus land; but where the excess is small (the Mishnah names the measure of nine kabs for a field, and a half-kab for a garden) the returned land would do the seller no good; hence the sages require the buyer to rectify the mistake in money. In case of deficit, the seller, of course, returns a part of the price pro rata.

Where both the expressions "chain measure" and "more or less" are used, according to the eminent lawyer Ben Nannos, the expression used first in the contract should prevail, the other falling to the ground; but the prevailing opinion is that the doubt is resolved against the buyer. Where the sale is made according to monuments and metes and bounds, and the quantity stated disagrees with the description, if the discrepancy is more than one-sixth it must be corrected; if less, the sale, stands ( see Ona'ah ).

Where one says "I sell thee half my field," one-half in value is meant; but the seller has the privilege of choosing the smaller portion from the best land. If the proposition is "I sell thee the southern half," the southern half by area is estimated. The seller may then give to the buyer the equivalent of that area from any part of the land; and the buyer takes in his part the space for dividing fence and ditch.

Sales of Vacant Lots and of Tombs.

• (4) He who sells to another a place whereon to build a house, or he who contracts with another to build a house for his son-in-law or his widowed daughter, must make it at least eight cubits in length by six in width (the opinion of R. Ishmael, which here seems to prevail over that of R. Akiba, who says six by four); a stall for oxen means one at least six by four; a large house, eight by ten; a banqueting-hall, ten by ten; and the height half of the sum of length and breadth. These measurements are evidently meant to be "in the clear." The word "house" ("bayit") in the Mishnah seems to mean one with a single room, a house of several rooms being known as a "birah."He who sells a lot for a family tomb, or contracts with another to make a tomb for him, has to furnish a vault with a clear space of six cubits by four, with eight actual graves ("kukin") opening into it, three on each side, and two opposite the entrance, each grave being four cubits in length, six palms in width, and seven palms in height. Another opinion (which did not prevail) made the vault eight by six cubits, and surrounded it with thirteen graves, requiring, moreover, that two such vaults should open from a "court," six by six cubits, on the surface of which the bier and the grave-diggers might rest.

—Of Chattels:

The modes by which and the precise time at which the ownership of movables passes from the seller to the buyer are set forth under Alienation ; the rescission of a sale and purchase, for Fraud and Mistake or for Duress is treated under those heads; and the right to rescind for inadequacy or excess of price is dealt with under Ona'ah . It remains to indicate, as under Sale of Land , how the words denoting the movable object sold are construed by the Mishnah (B. B. v.) and Gemara ( ib. 73a-81), and to speak of some incidental points.

Inclusive Sale.

He who sells a ship sells with it the mast and sail (others render "flag"), the anchor, and the oars and tackle, but not the slaves (employed in navigation), nor the bags (to hold the cargo), nor the cargo, nor the boats; but when the seller says "the ship and all that is in it" all of these things are included. He who sells a wagon does not sell the horses (unless they are harnessed to it); he who sells the horses does not sell the wagon to which they are attached; he who sells the yoke (and appendages) does not sell the oxen (though they be attached); he who sells the oxen does not sell the yoke; he who sells an ass does not sell the harness. R. Judah's opinion, that the price should indicate what was meant to be sold, is disallowed, because the rule Ona'ah offers sufficient protection.

He who sells a suckling ass sells her colt; but he who sells a suckling cow does not sell the calf, for the milk of the cow is of value. He who sells a beehive sells the bees in it. He who sells a dovecot sells the pigeons; he who buys from another the "fruits" ( i.e. , the next brood) of a dove-cot leaves to the seller the first two chicks for each mother bird, to keep her from deserting the nest. He who buys the next brood of a beehive takes the first three swarms that come out of the hive, and then stops impregnation, to save the honey for the seller. He who buys the cakes of honey leaves two behind (as winter food for the bees). He who buys olives, to cut them (from the tree), leaves two twigs full (to the seller). Unless there is a local custom to the contrary, the sale of the head of a beef does not include the feet, nor vice versa; the sale of the liver does not include the lungs, nor vice versa; but in the case of sheep and goats the sale of the head carries with it the feet, and the sale of the lungs includes the liver.

In measuring out oil or wine the seller (unless he is a retail merchant) must give the buyer three extra drops, to make up for that which adheres to the measuring vessel; but any that adheres to the bottom of the measure when it is tipped belongs to the seller.

Where grain is sold the buyer must accept as much dirt as one part in thirty; in buying figs, ten that are worm-eaten in a hundred; in a row of wine-jars, ten that are below the prescribed grade in a ḥundred. Where one sells wine to another and itsours, he is not liable on an implied warranty; but if the seller's wine is known to be apt to sour, it is a "mistaken purchase" ( see Fraud and Mistake ). If the seller says, "I sell thee spiced wine," it must keep good till Pentecost; if he sells it for "old wine," it must be of the previous year; if for "aged," it must be in its third year.

Dispute as to Price.

If seller and buyer disagree about the price, and if when they meet again the buyer takes the goods away unasked, he is supposed to take them at the seller's price; but if the seller tells the buyer to take his goods, they are sold at the price which is offered by the buyer.

The Mishnah treats the duty of keeping scales, weights, and measures in proper order in connection with the law of sales of goods (B. B. v. 10, 11), Rabban Simeon ben Gamaliel being the principal authority therefor. The rules deduced in the Talmud and found in the codes stand thus: A wholesale seller should wipe his hollow measures for liquids once in every thirty days; a householder need not do it more than once a year; the retailer should wipe them twice a week, and he should wipe his scales after every weighing. The patriarch named says that hollow measures for dry foodstuffs need not be wiped; and this (the opinion of Maimonides, "Yad," Genebah, viii., to the contrary) seems to be the accepted rule. In using scales the merchant must allow the meat or other goods weighed to sink down a palm's width below the level; or if he brings the scales to a dead level, he should give the customer the usual overweight, that is, 1 in 100 in the case of liquids, and 1 in 200 in that of solids. Where the custom is to deal out by small measures, the merchant must not use larger ones, as the customer would thereby lose part of the heaping; nor the contrary, where he buys. In like manner local custom must be followed as to heaped or level measure; and it is no excuse that deviation is compensated for by difference in price. A baraita (B. B. 89a) derives this rule from Deut. xxv. 15 ("a perfect and just weight," etc.). On the moral aspect of wrong weights and measures see Jew. Encyc. v. 500, s.v. Fraud and Mistake , I. 4.

J. L. N. D.