We stated at the beginning of last week's lesson, that there were two interrelated topics, sale of things whose quantity was unknown and the topic of selling things not yet in existence, the latter topic is this week's lesson.
There is a rule of law that one cannot transfer, by gift or by sale, a thing not yet in existence. Much of this lesson can be overcome as stated in the last lesson by the seller and buyer entering into a contract whereby the seller binds himself to deliver things not yet in existence. There is a difference between selling a thing not yet in existence and binding oneself to deliver a thing not yet in existence.

In the former case a kinyan is made for the transfer of the thing sold; in the latter case the kinyan personally binds the seller to transfer the thing some time in the future. (For those who were not readers when we discussed kinyan, the kinyan takes place as follows, as seen at all weddings, when the groom takes a handkerchief or some other object, such as a pen from the rabbi and by taking hold of the pen binds himself to be bound by all the terms of the kehthubah. A seller of property or things picks up the pen and binds himself to deliver the thing under discussion. Thus in case of the present sale, the laws not giving effect to the sale of a thing not yet in existence apply; while in the case of a contract where the seller undertakes to personally deliver the things not in existence the law gives effect to such contracts. The reason in all of these cases where Reuven obligates himself to deliver rather than having a current sale is that Reuven is in existence and can bind himself to perform in the future. Generally, that which is said about a sale also applies to a gift.

A person cannot sell a thing not yet in existence, even if a kinyan is made, because there is nothing in existence for the act of acquisition to acquire. This holds true if the thing transferred is by sale or by gift. This holds true even if the transferee is the son or daughter of the transferor. The sale is a nullity. An example of the rule is as follows: Reuven sells to Shimon "all that this field shall produce next year." Shimon pays for the produce or they agree upon a price, and an act of acquisition by kinyan is performed by Shimon. As another example, Reuven sells to Shimon the offspring that his cow will produce next year, even if the cow is now noticeably pregnant. In both cases the sale is a nullity since the parties intended a current sale rather than a current agreement for a future sale. (However, with a kinyan being performed, if Reuven sells, to Shimon the embryo that is now in the womb of the cow. the sale is valid; if the embryo dies it is Shimon's loss.)
Whenever the sale is a nullity and not effective, either party may treat the sale as such and neither party has any obligations to the other.

Reuven sells to Shimon the wheat that he will plant next year. They can treat the sale as a nullity even after the thing comes into existence.

On January 1 Reuven sells to Shimon wheat that will be planted in February and be harvested in August. The wheat is harvested in August. Even in September either party may state that he does not want to complete the transaction.

Just as a seller cannot sell something not in existence, under ordinary circumstances he cannot sell a thing not in his lawful control and possession. For example, Reuven sells to Shimon , 'this cow when I acquire it" or "this house when I acquire it" or "this cow when I inherit it from my father" or "the fish that I will catch in the lake today". Although the seller and buyer agree to the sale, it is a nullity and neither party is bound. The seller must return the purchase money to the buyer. In the case of the sale of fish that are yet to be caught, this holds true only insofar as the proceeds of the sale are not required for food for the fisherman for the day, but not otherwise.

This exception regarding the sale of the fish that the fisherman will catch today is only effective if the fisherman is poor and without this sale he does not have sufficient means to buy food for the day. Some say that the sale is valid even if he sells so much of the fish that he will catch that day, and the money is sufficient to buy food for him for a few days.

In the case of a son who is the sole heir of his father selling something that he hopes to inherit from his father, there is an opinion that it is not binding if he sells all that he will inherit from his father, but if he sells something specific that he will inherit, such as "this field that I will inherit," the sale is binding. The theory is that in the latter situation the son will ultimately inherit and, the heir-to-be having selected a specific item, it therefore leaves the category of being a thing not yet in his possession. There is another exception when, for example, he states, 'That which I will inherit from my father today is sold to you" and his father is about to die, the sale is effective, So long as it is limited to only a few items so that the son can pay for the father's funeral expenses. The number of items sold must be limited so that the proceeds of the sale will approximate the amount of money necessary for the funeral costs. Even if they bring in a little more than the actual costs, the sale is valid. The decree of the Rabbis provided for it to be so in order that the dead will not be embarrassed in the event that even though the decedent left enough money for the funeral, the heir could not sell any assets in anticipation of the father's death, If the son sells a great deal more than is necessary to pay for the funeral the excess sale is not valid. If the son predeceases the father the sale to the third party is not effective and the son's son may sue the buyer to get the sold property back.

The subject matter of this lesson is more fully presented in Volume VI Chapters 209 of"A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il.

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