Bava Metzia 16

Selling land you don’t (yet) own.

Our daf comes in the middle of a discussion about transactions that are built on shaky ground because the purported seller has a questionable claim to the land, which may have been mortgaged or stolen. In this vein, the Talmud asks: What if a seller makes a promise to transfer property before they actually acquire it? Can you sell something you don’t yet own?

Rav Huna says that Rav says: If one who says to another: “The field that I am about to buy, when I buy it, it will be retroactively transferred to your ownership from now.” Once he buys it, the second party acquires it. 

As an opening salvo, Rav Huna cites Rav, who believes that a person can sell property they don’t yet own. As soon as the seller acquires the property, it automatically transfers to the final purchaser. 

Let’s consider why someone might want to even do this. Perhaps they need immediate cash. Perhaps they are confident they will be able to purchase the property at an exclusive discount and thereby turn a profit. Whatever their reason, Rava is concerned about this practice:

Rava said: The statement of Rav is reasonable only with regard to an unspecified field, as one is capable of buying a field. But with regard to a case where one says to another that he is selling him a specific field that is not yet in his possession, the transaction does not take effect, as who is to say that the current owner will sell it to him?

Rava is not totally opposed to selling a field that one doesn’t own, but distinguishes between two types: a specific field and any old field. The first is difficult: What if the current owner of the specific field refuses to sell? However, if you’re not so particular, presumably an unspecified field is going to be easier (read: possible) to acquire, and the promise to transfer it is therefore more realistic and enforceable. Promising a specific field is too speculative, says Rava, so the obligation doesn’t take hold.

Either way, selling something that one doesn’t own seems risky — for both seller and buyer. Yet, the Talmud marshals support for Rav’s stance, that even a specific field can be sold before it is acquired, from a principle of Rabbi Meir, who states here and several times elsewhere in the Talmud that:

A person can transfer ownership of an entity that has not yet come into the world.

On the other hand, says the Gemara, we might also consider that others kinds of future promises are not permitted, for instance:

With regard to one who says to a woman: “Be betrothed to me after I convert,” or: “After you convert,” or if he is a slave and says: “After I am freed,” or if she is a maidservant and he says: “After you are freed,” or if he says to a married woman: “After your husband dies,” or if he says to a widow waiting for her levir to perform the ritual through which he frees her from her levirate bonds: “After your levir performs halitzah with you,” or if he says to his wife’s sister: “After your sister dies (see Leviticus 18:18),” — in all these cases she is not betrothed.

According to this position, if the betrothal can’t take effect or be acted on in that precise moment, it’s void. This contradicts Rabbi Meir, who also holds that these promises of betrothal become binding as soon as the dependent conditions come into reality.

So where does that leave us? Can you sell a field that you don’t own? Can you make a conditional betrothal? Later codes of Jewish law carry this conflict forward: The Mishneh Torah sides with Rabbi Meir and Rav, while the Shulchan Aruch disagrees, concluding that if you can’t betroth someone in that moment, the betrothal is ineffective. Given the Shulchan Aruch’s preeminent status in Jewish law, later authorities tend to rule this way. Nevertheless, this snippet of talmudic discussion shows another strain of thought that permits making binding contracts of sale or betrothal even when the conditions are not yet in place to enact them.

Read all of Bava Metzia 16 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 15th, 2024. If you are interested in receiving the newsletter, sign up here.

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