הלכות מכירה

There are three types of individuals whose purchase is not considered a binding purchase, nor is their sale considered a binding sale according to Scriptural Law: a deaf mute, a mentally incapable or emotionally unstable individual, and a minor. Our Sages, however, ordained that a deaf mute and a minor may buy and sell in order to guarantee their livelihood.

How does a deaf person buy and sell? Both a deaf mute and a deaf person who can speak may buy and sell through gestures.
This applies with regard to movable property, but not with regard to landed property. Moreover, even with regard to movable property, his deeds are not binding until he has been tested many times and the matter is considered thoroughly by the court.

Different rules apply with regard to a mute who can hear but cannot speak, or someone who has lost the ability to speak. Both sales and purchases in which he engages are binding, as are the presents which he gives, whether movable property or landed property is involved, provided he is tested as one tests with regard to a bill of a divorce, or he writes instructions by hand.

Neither a sale nor a purchase involving a mentally incapable or emotionally unstable individual is binding, nor are the presents he gives effective. Instead, the court must appoint a guardian for such a person, just as it appoints guardians for minors.

The following rules apply when a person is at times unable to control his behavior and capable of doing so at other times - e.g., an epileptic. During the times he is capable of controlling his behavior, all of his financial undertakings are binding. He can acquire property for himself and for others like any other ordinary person. When he is not in control, his deeds are not binding.
Witnesses to a transaction must research the matter carefully - perhaps the transaction was concluded at the conclusion of a period of mental instability, or when an unstable period began.

The following rules apply to a minor: Until he is six years old, he may not transfer property to others at all. From the age of six until he attains majority, he should be tested. If he possesses an understanding of the nature of financial transactions, any purchases or sales he undertakes, and any presents he gives, are binding.
This applies whether a large matter or a small matter is involved, whether he is giving a present while healthy or he is dispensing his property on his deathbed.
As we have explained, this is a Rabbinic decree, instituted so that the minor will not be forced to remain idle, without finding anyone to sell to him or buy from him. And this applies only with regard to movable property. With regard to landed property, a minor cannot sell or give property away until he attains majority.

When does the above apply? With regard to a minor who does not have a guardian. If, however, the minor has a guardian, his transactions, even those involving movable property, are of no consequence unless they are approved by the guardian. If the guardian does desire to approve a purchase, a sale or a present of movable property, it is binding.

We test a minor to see whether or not he possesses an understanding of the nature of financial transactions. For there are some minors who are wise and astute and understand such matters even at age seven, and there are others who do not understand financial transactions even when they reach the age of thirteen. When a minor who does not have a guardian and who possesses a good understanding of financial matters errs with regard to the appraisal of an object, the same laws that apply to an adult apply to him. If the error is less than a sixth of the value of the object, he is considered to have waived the difference. If it is a sixth, the unfair gain must be returned, and if it is more than a sixth, the transaction is nullified, as we have explained.
I maintain that a purchase or a sale of movable property in which a minor engages is not binding unless the transaction is concluded by meshichah. If, however, a minor paid money for an article and then reneged, the transaction is nullified.The minor is not required to receive the adjuration mi shepara. If, however, others renege on their commitment to him, they are required to receive the adjuration mi shepara.

Similarly, if a kinyan sudar was made with a minor or the purchaser rents the place on which the movable property was located, and the minor retracted, the purchaser does not acquire the movable property.For property cannot be expropriated from a minor through legal process. And a kinyan established by a minor is of no consequence. For a kinyan depends on a legal document, and witnesses will not sign a legal document unless the parties involved are above the age of majority.

Similarly, if a minor purchased movable property and sought to finalize the transaction with a kinyan sudar or by renting the place where the movable property was located, he does not acquire the movable property until he performs meshichah. The rationale is that he cannot acquire property using any of the legal processes that are used by an adult. Proof of this thesis can be drawn from the fact that a male minor does not acquire by virtue of the presence of property in his courtyard, nor by virtue of the presence of property within the radius of four cubits next to him. The rationale is that these are effective with regard to the acquisition of property, because of the principle of agency, not as an extension of his physical person, as will be explained. It is improper that a kinyan sudar and the rental of the place where property is located should be more effective than the acquisition of property by virtue of its presence in one's courtyard.
Different rules apply with regard to a female minor. She is given the right to acquire property by virtue of its presence in her courtyard, as an extension of her physical person. Therefore, she may finalize the acquisition of movable property with a kinyan sudar or by renting the place where the movable property was located.

It appears to me that when a minor acquires landed property, pays its price, and manifests possession over the property, it should remain in his possession, despite the fact that he cannot sell property. The rationale is that it is as if the minor were not in our presence. And we follow the principle: we may acquire a benefit for a person outside his presence, but we cannot cause a loss for a person outside his presence.

When a minor attains majority - i.e., a male over thirteen years old and a female over twelve, when they manifest signs of physical maturity - any purchase, sale or present of movable property that he or she undertakes is binding. This applies even if he or she does not possess an understanding of the nature of financial transactions.
With regard to landed property, by contrast, his deeds are not effective unless he is past majority and possesses an understanding of the nature of financial transactions.

When does the above apply? With regard to his own property. With regard to landed property that he inherited from his parents or from other deceased persons, his sale of this land is not effective until he is twenty years old. This applies even though he has manifested signs of physical maturity and possesses an understanding of the nature of financial transactions. This restriction was applied lest the youth sell the land cheaply, because he is attracted by money, and he has not become settled within ordinary worldly ways.

When a youth below the age of twenty gives a present of landed property - whether he gives it while healthy or as part of the distribution of his property in an oral will - it is binding. The rationale is that unless he received significant benefit, he would not have given it. Moreover, this is a rare occurrence. Our Sages said: "Let his present endure, so that his words will be heeded."

When does the license for a youth to sell property inherited from his father after he reaches twenty apply? When he has manifested signs of physical maturity or manifested signs of being sterile. If, however, he did not manifest signs of physical maturity or sterility, he is still considered a minor, and a sale of landed property that he makes is not binding - even with regard to property that he acquires himself - until he reaches the age of 35.

The following rule applies when a youth sells landed property - that he either purchased or inherited - and then dies, and his heirs maintain that he was a minor at the time of the sale. If they seek to have an examination made, we do not heed their desire to debase his remains. Moreover, it is questionable whether the examination would be of any value, because the appearance of these physical signs changes at the time of death. A further rationale to accept the validity of the sale is that we accept the presumption that witnesses would not sign a deed of sale unless they knew with certainty that the seller had attained majority.

When a youth who is below the age of twenty sells property that he inherited, he may expropriate it from the purchaser, whether before the age of twenty or after the age of twenty.
When he expropriates the property, he may also expropriate the value of all the produce of the property that the purchaser has consumed. If the purchaser undertook expenses or planted or sowed, we evaluate the amount due him, but he must return the remainder.
This is the way my masters have ruled. I maintain that even if a minor sells property that he inherited, if he does not protest immediately after he becomes twenty, he is no longer able to protest. The rationale is that since the seller took the money, and the purchaser used the land with his consent after he attained the age of twenty without his protest, the acquisition of the property by the purchaser is confirmed, because the seller showed his appreciation of his sale.

A drunken man is considered to be responsible for his actions. A sale, a purchase or a present involving him is binding. If, however, his drunken state approaches that of Lot- i.e., he is so drunk that he does not realize what he is doing - his deeds are of no consequence. It is as if he were a mentally incompetent person or a child below the age of six.