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S.A.L.T. - Thursday

As we've discussed this week, Parashat Behar devotes considerable space to the prohibition of "ona'at mammon," overcharging and underpaying for merchandise.  The Torah introduces these laws as follows: "When you sell merchandise to your fellow, or buy from your fellow… " (25:14).  In describing the purchase of items, the Torah speaks of buying "mi-yad amitekha" – literally, "from the hand of your fellow."  The Gemara in Masekhet Kiddushin 26a cites the view of Reish Lakish, who interprets this phrase as indicating the precise point at which the transaction takes effect. According to Reish Lakish, the sale is effectuated by "meshikha," when the buyer (or his agent) physically takes the given item.  (Obviously, we deal here with only tangible property; real estate has its own set of laws as to the formal effectuation of a transaction.)  By describing the transacted item as passing from one hand to the next, the Torah informs us that it is the physical transfer of the given merchandise that effectuates the change of ownership.

Rabbi Yochanan, however, disagrees.  He maintains that meshikha as the effectuation of a transaction was instituted by Chazal.  According to Torah law, he claims, "ma'ot konot" – the transfer of money from the buyer to the seller effectuates the sale, even before the buyer ever took (or, for that matter, ever saw) the merchandise.  Why, then, did Chazal legislate that a transaction takes effect only at the point of meshikha, when the buyer takes physical possession of the item?  Rabbi Yochanan explains that Chazal sought to avoid a situation where the buyer, after receiving the sum for the given item, keeps the merchandise for himself and falsely claims that it was destroyed ("nisrefu chitekha ba-aliya"). Once Chazal required the physical transfer of the merchandise for the transaction to take effect, the buyer obviously cannot make such a claim.  Additionally, the Gemara says, this legislation of Chazal helps ensure that if a fire, for example, breaks out in the buyer's home after he receives the money, threatening to destroy the sold merchandise, he will make a concerted effort to save the merchandise.  Without this provision, the merchandise will have already been legally transferred to the buyer, and the seller would thus have no incentive to exert himself to save the items in danger.

In any event, according to both Rabbi Yochanan and Reish Lakish, a transaction does not take effect with the transfer of funds, but does so only when the merchandise is physically taken by the buyer. Accordingly, even after the transfer of money, either the buyer or the seller could renege on the deal.  Since the transaction has yet to take effect, the buyer could reconsider his decision to purchase the item and demand the return of his money.  While this is technically true, the mishna in Masekhet Bava Metzia (44a) writes, "If he gave him the money but did not take [the merchandise], he can retract, but they [the Sages] said: The One who punished the generation of the flood and the generation of the dispersion shall punish the one who does not keep to his word."  Meaning, though according to the strict letter of the law the buyer has done nothing wrong by canceling the sale, Chazal nevertheless issued this "curse" of sorts (referred to in halakhic jargon as "Mi she-para"), warning that God will punish those who renege on their agreements.

One question that arises from this mishna is why in formulating this warning Chazal invoked specifically the dor ha-mabul (generation of the flood) and the dor ha-palaga (generation of the dispersion – the tower or Bavel).  We find in Scripture so many examples of divine wrath punishing sinners.  Why did the Sages issue this warning specifically in light of the punishments that befell these two groups of sinners?  This question perhaps becomes stronger in light of Reish Lakish's position, that even according to Torah law merchandise does not change ownership until meshikha.  If so, then the buyer who withdraws from the deal has worked entirely within the legal framework of buying and selling.  Why, then, do Chazal declare upon him the punishments suffered by the two sinful generations, of the deluge and of Migdal Bavel?

An interesting answer was suggested in the work "Tikkun Shelomo" (cited by Rav Yehuda Leib Ginsburg in his Yalkut Yehuda).  These two events – the flood and the dispersion – mark perhaps the most glaring examples of severe punishment without the violation of any specific code of law.  The generation of the flood did not have a Shulchan Arukh or even a Talmud; no written or oral body of law forbade the type of behavior in which they engaged. The same is true about the tower of Bavel.  These two events demonstrate perhaps clearer than any other that not every rule need be written to demand compliance.  God created the world with a certain basic code of ethics for mankind to observe, and He endowed the human being with an intuitive moral sense, which results in his accountability for unethical conduct.

Therefore, the "Tikkun Shelomo" suggests, Chazal naturally invoked these two catastrophes in their admonition against those who renege on verbal agreements.  True, the buyer has not violated any specific divine command. But the intuitive values of honesty and sensitivity dictate that one follow through on his agreements with others. Therefore, one who violates this "unwritten law" is deserving of punishment just as calamity befell the generation of the flood and the builders of the tower.

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