Sources:
The Shulchan Aruch writes: One who conducts negotiations through words alone should keep his word, even though he has received none of the money, made no marking, and no collateral was given. End quote. (This is based on the Rambam, Hilchot Mechirah, chapter 7, halachah 8; and likewise in the Tur.)
Now, what it specifies—“even though he has received none of the money, made no marking”—is well understood. For if money had been given or a marking made, he would be subject to Mi Shepara, as stated in סעיף א regarding money and in סעיף ו regarding a marking. However, its specification, “and no collateral was given,” is not comparable, for even if collateral was given, one is not subject to Mi Shepara, as stated in סעיף ה. Thus, the wording of the Shulchan Aruch requires explanation.
It is possible that the Shulchan Aruch intended to teach us the gravity of the matter: even where Mi Shepara is entirely inapplicable, it is nevertheless proper to keep one’s word. (All this is likewise correct regarding the wording of the Rambam and the Tur.)
With this, we can explain what the Rema came to clarify further when he wrote at the end of the siman, in סעיף י״א: Although one may withdraw when there are merely words and no money, and he need not accept upon himself Mi Shepara, nevertheless, it is proper for a person to keep his word even though he performed no kinyan, but merely exchanged words; and whoever withdraws, whether buyer or seller, the Sages are not pleased with him. End quote. At first glance, these are precisely the words of Maran in the Shulchan Aruch here in סעיף ז. The Sema already noted this here (ס״ק יג) and wrote: “The Rema repeated and wrote this ruling at the end of this siman, following the wording of the Tur, and did not notice that the Mechaber had already written it here; whereas the Mechaber followed the order of the Rambam’s presentation.” End quote. The Sema repeated this again in סעיף י״א (ס״ק יח), writing: “All this was already written by the Mechaber himself above in סעיף ז, as stated there; see there.” End quote. Based on what we have explained, it is possible that the Rema’s intent was to sharpen the point that emerges from the precise wording of the Shulchan Aruch at the conclusion of his words in סעיף ז, as explained with Heaven’s help. For without close attention, one might think that it is proper to keep one’s word only where Mi Shepara is, in principle, applicable. As explained.
Indeed, see the Biur HaGra (ס״ק טז), who did not view this as an observation on the Rema, but simply wrote: “Although, etc.—the Gemara there, and as above in סעיף ז.” End quote.
After writing this, I found in Sefer Kehillat Yaakov Algazi (Tosefet DeRabbanan, ma’arechet, letter פ, siman רסו, s.v. Asher al פי zeh), who wrote: “It may be explained that which the Rambam wrote (Hilchot Mechirah 7:8), as follows: ‘One who conducts negotiations through words alone should keep his word, even though he has received none of the money, made no marking, and no collateral was given,’ etc. End quote. This is difficult, for how could he write, ‘even though he has received no money and no collateral,’ which implies that if he had received collateral there would be a form of kinyan, comparable to receiving money or making a marking? This is not so, for earlier in that chapter (halachah 5) he already wrote that collateral is of no consequence, even regarding Mi Shepara. In my humble opinion, this is what the Hagahot Maimoniyot intended there in halachah 5 regarding collateral, where it states: ‘The words of Rabbeinu, the author, at the beginning of this chapter require examination, lest they contradict one another.’ End quote. In my humble opinion, it means that there is a difficulty from what he wrote in halachah 8. However, according to the above, this is resolved: what he wrote in halachah 8, that even if no collateral was given—which implies that giving collateral effects some form of kinyan—refers to a case where he explicitly stated: ‘Acquire through this collateral the lien for the purchase price.’ In such a case, he becomes obligated; and since he becomes obligated, it is considered like the giving of money with respect to a sale, and for movable property he is subject to Mi Shepara.” End quote.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
