Beginning with this lesson we shall discuss two topics, both of which deal with sales of a nonspecific thing that cannot now be seen and segregated.
The first deals with the sale of a thing, the quantitative content of which is not known. For example, the seller sells to the buyer a truckload of coal. Neither the seller nor the buyer know the exact amount of coal in the truck.

The second topic deals with a thing not known at the time when the sale is made. The thing is not yet in existence. It may never come into existence, and the quantity is thus unknown.

These topics are divided into two lessons - lesson 177, Sale of An Unknown Quantity, and lesson 178, Sale of a Thing Not Yet in Existence.
Although there are laws in the land that state there can be a sale of an unknown quantity or a sale of a thing not yet in existence, a person does not have to enter into such a transaction if it will not be valid under halachah. I think that the better practice is for Beth Din to ascertain the intent of the parties through their actions and conversations to see if they intended to be bound according to the laws of the land. If the parties intended a contract rather than a sale, the contract will be valid while the sale may not be valid.

Under a contract a person can bind himself personally to deliver a thing when it will come into existence. For example a person can bind himself today in February, 2003 to deliver to the purchaser 500 bushels of 2005 winter wheat, which hasn't even been planted yet. He cannot, however, sell him the 2005 wheat. In the former case it is the promisor who is the subject of the transaction when he says "I will deliver to you 500 bushels of wheat in 2005." The sale will take place in 2005 when the wheat is grown. In the latter case, the wheat is the subject of the transaction. "500 bushels of 2005 winter wheat is sold to you." The sale takes place now. Many people who deal in commodity futures in the stock markets, come across these types of transactions all the time.

We shall begin with the topic where the quantity of the thing being sold is unknown. For the purposes of the sales in these lessons it is assumed that a proper kinyan or other act of acquisition is always made by the purchaser and the purchase price of, let us say, $20 is paid.

Personal property is usually sold by weight, such as nails; by individual count, such as pencils; or by volume, such as wheat.

Reuven sells to Shimon a box of nails; neither knows how much the nails weigh. Reuven sells to Shimon a carton of pencils; neither knows how many pencils are in the carton. Reuven sells to Shimon a truckload of wheat; neither knows how many cubic feet of space the wheat occupies.

The sale is binding in all of these cases. If the quantity is much different than the purchaser expected, he may avail himself of the “discrepancy in price” provisions provided for in halachah. The price paid may be a guideline compared to the market price for these items.

The buyer would not have bought if he thought that he had no recourse to the seller for any short weight, number, or volume. The buyer relies on the seller to tell him these quantities, and the buyer may avail himself of the concept of discrepancy in price by the seller, even if the seller did not know that the quantity should have been greater for the price paid by the buyer.

We have discussed the topic where the quantity is unknown. We shall now discuss the topic where the type of goods is unknown. Reuven sells to Shimon for $100 everything contained in his house, and an act of acquisition is made. Or Reuven sells to Shimon all that a certain carton contains for $100 and Shimon lifts the container as an act of acquisition.

Shimon does not know what is in the house or in the carton, but Reuven does know. The act of acquisition is not a valid act, and Shimon will get back his $100 if already paid, and if not yet paid, Shimon owes nothing to Reuven and is not entitled to the contents. Since Shimon did not know what was in the house or in the carton, he did not have the requisite intent to effect the acquisition. This transaction is less binding than gambling discussed a few weeks ago. In the latter situation there is a kinyan made that the parties desire to keep, and neither gambler knows the outcome. In this case the buyer does not know that he can expect anything of value to be in the carton, while the seller knows the contents of the carton. However, if Reuven can prove to the Beth Din that he too did not know the contents of the house or of the carton, the acquisition is binding on Shimon. Since neither knows the contents, this is similar to gambling and is binding if a valid kinyan is made.

Assume that Reuven has a barge full of wheat and the barge sank in shallow water. It is not known what is the condition of the wheat in the barge, whether it is all spoiled or only some of it. Reuven sells the wheat in the barge to Shimon for $100. There are some authorities who hold that this may be similar to gambling, which under certain circumstances is binding on the parties.

Assume that Reuven sells to Shimon $100 worth of wheat without specifying how many bushels he is selling. Shimon paid for the wheat. Reuven must deliver to Shimon as many bushels as could have been bought in the market for $100 at the time that the $100 was paid to him by Shimon.

Whoever reneges on the sale (they may renege because no kinyan was made) will be punished with the curse of "He who punished" as described in lesson 169, (TT 553)

The subject matter of this lesson is more fully presented in Volume VI Chapters 209 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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