The acquisition of personal property, such as the purchase of loaf of bread or a shirt, is the most common of all commercial transactions.

Understandably, there are many chapters in Yosef' Karo's Shulhan Aruch, Hoshen haMishpat dealing with this subject.

This week's lesson deals with the topics of how local custom and local laws impact on the halachoth dealing with purchases of personal property and also how personal property can be acquired along with real estate (which topic will be more fully discussed in next week's lesson.)

Throughout these lessons it is stated that in civil law, halachah generally recognizes the law of the land and local practices and customs. The concept of the sale of personal property is probably the best example of such acceptance. Throughout the world, both in business and in everyday household purchases, the custom of the community is followed without giving much thought to any other halachik way of purchasing things. This lesson shows a few instances where local customs have become part of the halachah.

The example given in the Talmud (Baba Metzia 74a) to follow the local custom takes place when the buyer makes his mark on a barrel of wine in the seller's warehouse and the barrel and the wine immediately belong to the buyer, although no other act of acquisition has been performed as described in the previous lessons.

Although this chapter in Shulhan Aruch Hoshen haMishpat (chapter 201) is very short, it may control more halachik sales than all the other chapters of Shulhan Aruch dealing with this subject combined. Whatever the custom of the community in the sale and purchase of personal property, if it is followed, the merchandise will be acquired by the buyer.

According to some of the local practices, the ownership may be transferred from the seller to the buyer when: the buyer gives the seller the entire money or just a deposit on account; or when the seller gives the buyer a sales receipt or bill of sale or warehouse receipt; or, when the seller delivers the merchandise to the buyer; or when the seller delivers to the buyer a key to the place where the goods are stored; or any of a number of other practices.

It may be just by words, as where a diamond dealer will say 'mazel u'brochah" to show that the deal is completed. Or in certain industries, by a handshake. It may be a nod at an auction, or a waiving of a hand on the floor of a stock exchange.

It may be by an acknowledgment by the seller with words, in person or over a telephone or by fax. The words may be specific or just a hint, such as "It's yours."

In each community Beth Din will know the custom and when the sale is completed. The time that ownership is transferred is important since the risk of the loss of the goods is with the owner.

In many lands there are sales laws that control, if they are followed. Usually the custom of the community takes into account that the
price and other terms of the sale are agreed upon before the sale is deemed completed.

The current practice is to follow the custom of the community even as to things that the halachah, absent such a local custom, does not permit to be sold. For example, things not owned by the seller, or things that do not have substance. There is a difference of opinion among the authorities as to whether a seller can sell to the buyer a thing not yet in existence. According to ha1achah it cannot be done. This is obviated by the seller obligating himself to deliver the thing when it comes into existence, rather than a sale of the thing. That is, the seller, does not say "I sell to you the wheat that will be grown two years hence", or "I sell to you the chair that I shall manufacture next week". Instead he says, "I obligate myself to deliver to you the wheat that I shall grow two years hence" or "I obligate myself to sell to you the chair that I shall manufacture next week".

The previous lessons discuss many of the ways to purchase personal property. The most obvious way in most cases is by lifting the item and paying for it. Also as stated above, there is also the method of following the custom of the community. For the purchase of things not liftable and where there is no definite custom in the community or where the parties desire to follow the methods of halachah, there is always the method of kinyan described in lessons 159 and 160. These are methods described in the Talmud and they are forever effective.

There is yet another way that personal property can be acquired. That is, if a buyer completes a purchase of real property, there is a method whereby he can also acquire ownership of the personal property at the same time. The personal property discussed here is not necessarily related to the real property. We are not discussing the refrigerator or chandeliers that are sold together with the house (which will IYH be discussed in a future lesson.). We are discussing objects unrelated to the house. That is, the house is sold for $10,000, and at the same time a bracelet is sold for $100 and a car is sold for $200. The sale of the bracelet and car have nothing to do with the sale of the house. Just the seller and purchaser happen to be the same. The acquisition of the bracelet and the car are acquired by the purchaser by a method known as "agov," or "along with." That is, along with the transfer of ownership of the real property there is also a simultaneous transfer of ownership to the buyer of the personal property. The personal property is acquired without any additional act of acquisition.

We shall IYH continue the subject of "agov" acquiring personal property along with the acquisition of real estate in the next lesson.

The subject matter of this lesson is more fully presented in Volume VI Chapters 201 & 202 of"A Restatement of Rabbinic Civil Law" byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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