The Halachic Definition of “Purchase Vouchers”

A case occurred involving a shopkeeper who regularly sells vouchers entitling the holder to make purchases at a discount of several percent. Once he sold a large quantity of vouchers in exchange for a postdated check, and the check was dishonored. The shopkeeper therefore wishes not to honor these vouchers. However, the buyer sold the vouchers to other people. We must discuss whether, after people purchased the vouchers properly and lawfully, the shopkeeper is obligated to honor them, or whether he may claim that since he received no payment for them, these vouchers are considered stolen from him and he is not obligated to honor them. With whom does the law rest?

   Purchase vouchers are considered like a shtar mamrani

A. Since purchase vouchers can be transferred, they are considered like a mamrani. HaRav HaGaon Rabbi Mendel Shafran shlita agreed with me that this is how one should rule in practice. The matter of the “mamrani” is first discussed by the author of the Levushim in Ir Shushan (Choshen Mishpat 48). He writes that since the earlier authorities did not discuss it, because it was not customary in their time, now that it has come before us we should address it. The essence of a mamrani is this: the borrower signs his name on a blank sheet on one side, where nothing is written except his signature, and on the other side, exactly opposite the signature, in the borrower’s presence, the amount owed and the time of payment are written. He concludes that all laws of trustworthiness, force, and validity of documents apply to the amount and payment date written on the other side. This is the concept of a shtar mamrani.

Takkanat ha-shuk

B. It is stated in Bava Kamma (115a): if a thief stole and paid his debt with the stolen item, or stole and paid for purchases bought on credit, takkanat ha-shuk was not enacted in such a case, for one says: it was not on account of this that you gave him anything. If he pledged an item worth two hundred for one hundred, takkanat ha-shuk was enacted. If it was for equal value, Ameimar said it was not enacted, and Mar Zutra said it was enacted; the halachah is that it was enacted. In a sale for equal value, takkanat ha-shuk was enacted. If something worth one hundred was sold for two hundred, Rav Sheshet said it was not enacted, and Rava said it was enacted; the halachah is that in all these cases takkanat ha-shuk was enacted, except where the thief paid his debt or paid for purchases on credit. So rules the Mechaber (356:2).

It is clear from the Gemara that when one buys from a thief, takkanat ha-shuk was enacted so that the owners cannot take the object without payment. The reason is that if they could recover it from the purchaser without paying, people would stop buying, fearing that perhaps the item is stolen and the owner will take it without payment. Therefore the Sages enacted that the victim may recover it only for payment, and commerce will continue.

C. Rashi in the sugya (s.v. Rav Pappa) writes: “Regarding a stolen cloak, all agree that it returns to its owner immediately and for free, and the purchaser cannot hold it back on account of his money.” From Rashi, as Ulam HaMishpat (356:8) infers, it appears that the enactment means that first the purchaser must return the stolen object to the victim, and afterward the victim returns money to the purchaser.

But the Shitah Mekubetzet cites the Ramah: “We learn from this that we do not remove it from the purchaser’s possession until the owner has given him his money.” So too the Tur (356:4) writes: the Sages enacted that he need not return it to its owners until they give him his money. This is also the wording of the Mechaber (356:8): he takes the money from the owner and afterward returns the stolen item, because of takkanat ha-shuk. That is, first he takes the money, and only afterward returns the stolen item.

However, the Knesset HaGedolah writes that Rashi too holds that first he receives the money and afterward returns the object. Rashi meant only that before the owners’ despair, had takkanat ha-shuk not been enacted, the purchaser could not hold the object back; but after takkanat ha-shuk was enacted, requiring the owner to pay, Rashi would also agree that the purchaser may retain the object until he receives payment.

Takkanat ha-shuk makes the object his

D. The Shulchan Aruch (Even HaEzer 28:1) writes: “If one betroths a woman with stolen property, if the owners have despaired, she is betrothed.” The Beit Shmuel (3) asks: according to the Shulchan Aruch (356), regarding a stolen item, despair and change of possession do not acquire for the purchaser the money, but only the body of the object; if so, what did the woman receive, since she must return the money? He answers that this concerns a thief who is not notorious; in such a case she need not return the money, because the victim must give her the value of the object by virtue of takkanat ha-shuk. A rabbinic acquisition created by takkanat ha-shuk is effective on a Torah level, like ma’amad shloshtan, where the betrothal is valid on a Torah level.

The Avnei Miluim (Even HaEzer 28:2) raises several difficulties against the Beit Shmuel. He also asks: what comparison is there between takkanat ha-shuk and a rabbinic acquisition that is effective on a Torah level? Even if a rabbinic acquisition were not effective on a Torah level, she would still be betrothed, for the acquisition itself is despair plus change of possession. Without takkanat ha-shuk the woman would have nothing from the stolen object, since she would be obligated to return the money to the victim. Takkanat ha-shuk helps by removing that obligation, and then the acquisition of despair and change of possession works. There is no need to say that a rabbinic acquisition is effective on a Torah level, for despair and change of possession themselves are a Torah acquisition; the usual obstacle is the obligation to pay. Once takkanat ha-shuk removes that obligation, the acquisition is effective by Torah law.

   Takkanat ha-shuk regarding documents

E. The source is in the responsa of the Rosh (79:5). Reuven had a promissory note against Shimon and transferred it by writing and delivery to Levi. Naftali claimed that Reuven owed him before lending to Shimon, so Reuven’s note against Shimon was pledged to him and he acquired rights to it by priority. Levi responded that the note given to him is like movable property and no law of priority applies. The Rosh answered that the law appears to be with Naftali, since his note is earlier and Reuven pledged his movable property together with real estate. The reason one does not collect movable property that was sold is takkanat ha-shuk: otherwise no one could buy an object from another because of his creditors’ liens. But with the transfer of a promissory note, takkanat ha-shuk does not apply, for it is uncommon; moreover, the note did not completely leave Reuven’s domain, since he still retains the power to forgive the debt. It is therefore still considered his property for creditors to collect from.

The Rosh gives two reasons why takkanat ha-shuk does not apply to documents: first, documents are uncommon, so no enactment was made; second, takkanat ha-shuk applies only where the purchaser acquired completely, but with documents, since the seller can still forgive the debt, the document has not fully left his domain.

The Shach’s view: takkanat ha-shuk applies to a mamrani

F. The Shach (50:7) discusses one who sold a shtar mamrani, and it emerged that before selling it he had already written a receipt stating that he had been paid. The Shach rules that if the purchaser claims he did not know the borrower had already paid the first lender, although the borrower is obligated only for the sum written in the mamrani and no more, nevertheless it is as if he became obligated to the purchaser; what he paid the first lender is his own loss. The Shach adds that where the purchaser did not know, it is like someone who bought an item and later learned it was stolen and not the seller’s; nevertheless, the owner must return his money because of takkanat ha-shuk, as in 356, and the same applies here. Although the Rosh and Tur (60, end of 1) wrote that takkanat ha-shuk was not enacted for documents because they are uncommon, that applies to ordinary documents. But the mamranot of our times, which are very common and are bought and sold even more than movable property, certainly fall under takkanat ha-shuk. Thus the Shach answers the Rosh’s first reason: mamrani documents are common.

The Shach continues regarding the Rosh’s second reason: since the document did not fully leave his domain because he can still forgive it. But a mamrani cannot be forgiven, as explained in 66, and therefore takkanat ha-shuk applies. The Shach concludes: accordingly, where in a mamrani the debtor proves that he paid the first lender before the purchase, the purchaser must swear how much he paid for the mamrani and receive that amount, as in 356. But if he knew, or there was a receipt or witnesses showing that he knew it was stolen, no money need be returned to him. The Netivot (6) cites the Shach and seems to agree: although takkanat ha-shuk was not enacted for documents, it does apply to mamrani because they are common and cannot be forgiven.

The Ketzot’s view: in a mamrani there is no takkanat ha-shuk, as with documents

G. The Ketzot (50:2) cites responsa of Maharam Alshich (124): if a stolen object came into the owner’s hands, he need not pay the purchaser because of takkanat ha-shuk. The explanation is that the enactment was made where owners come to take the object from the purchaser’s hands. But if they already removed it from the purchaser, they need not pay. This is not because of possession, but because this was the enactment itself: when the owner comes to remove from the purchaser an object bought from a robber, he must pay the purchaser what he paid the robber, and then the victim will collect from the robber. But if the owner already recovered the object by some means from the purchaser, he is not claiming anything from the purchaser, and there is no claim against the victim.

Rabbi Akiva Eiger disagrees with the Shach

Rabbi Akiva Eiger likewise writes in his glosses to the Shulchan Aruch: “In my humble opinion, this is not comparable. There the owners wish to remove the object from the purchaser, and the Sages enacted that it be removed only for payment; but here the purchaser comes to extract with a mere shard.” Meaning: there is a difference between a shtar mamrani and other movables. With movables, the purchaser holds them and the victim comes to remove the stolen object; the Sages enacted that the victim pay the purchaser what he paid. But with a shtar mamrani, the purchaser demands payment of the amount in the document. He did not know it had already been paid and bought it relying on the debt. When he now claims the money from the borrower, the borrower does not receive from him a valuable object, but merely a “shard.” Rabbi Akiva Eiger holds that takkanat ha-shuk was not enacted for this, only where a valuable item is returned.

  Explaining the Shach

H. It seems possible to explain the Shach as follows. The Ketzot challenged him from Maharam Alshich, but the Shach was certainly aware of those words, for he cites them in 356:4. Rather, the Shach holds that there is no difference whether one comes to claim money or a document that is itself a mere shard, and whether the borrower is in possession. Ultimately the owners, whether of the money or of the document, lose either the money or the sum stated in the document. For this the Sages enacted takkanat ha-shuk, so that commerce should continue. What difference does it make whether it is money, which has value, or a document, which has no intrinsic value? If no enactment is made, people will not trade in mamrani documents and the market will stop. Therefore takkanat ha-shuk was enacted even though the document itself is not considered monetary value, because market practice trades in it.

Resolving the difficulty from Maharam Alshich

I. According to all the above, there is no contradiction from Maharam Alshich, who wrote that if one paid money and the purchaser still did not receive the object, takkanat ha-shuk does not apply. The explanation is not as the Ketzot wrote, that the owner receives nothing from the purchaser. Rather, according to the Shach, when the purchaser gives money and leaves the object with the seller, the enactment of takkanat ha-shuk does not apply, because the purchaser could give the money and immediately take the object; then, if the victim comes to remove it, he must pay. If the purchaser left the object with the seller, the victim is not taking it from the purchaser; this is an uncommon case that does not require takkanat ha-shuk. If the purchaser fears it may be taken from him, he has a remedy: not to leave the object with the seller, but keep it himself, and if it is taken from his hand he will receive his money from the victim.

The Acharonim’s understanding of the foundation of takkanat ha-shuk

J. The Ketzot and Rabbi Akiva Eiger understood that the enactment is based on the purchaser holding the object while the victim comes to take it from him; similarly, if a borrower sold movables and the lender comes to collect from the purchaser, the purchaser is the one in possession, and the Sages enacted as if the item were acquired by him, so the victim or creditor must pay him because he holds the object.

But the Shach holds that the enactment exists to maintain commerce. If property is removed from a purchaser without payment, he will not buy from the seller, fearing it may be removed and he will lose everything. This concern exists with mamrani documents too: people will not buy them, fearing they were already paid and the purchaser will lose. Therefore the Sages enacted that the purchaser not lose; and thus even with mamrani, though he holds no tangible object, takkanat ha-shuk was enacted so commerce should not cease.

A contradiction in the Shach

K. Seemingly the Shach contradicts himself. In 50:7 he writes that for a mamrani takkanat ha-shuk was enacted, unlike ordinary documents, because trading in them is common, and the victim must pay the purchaser the purchase price, even though the money is in the victim’s hands and not with the owners. But elsewhere (356:4) he rules that takkanat ha-shuk was not enacted where the stolen object reached the owners’ hands.

Resolving the Shach’s contradiction

L. The explanation appears to be that when we say takkanat ha-shuk was not enacted where the stolen object is in the owners’ hands, that is specifically when the very stolen object is with the owners. The whole purpose is to sustain commerce; if items are removed from purchasers without payment, trade will stop. Therefore, where the stolen object remains with the owners, the enactment was not made, because nothing is being removed from the purchaser. But with a mamrani the object itself is not with the owners, for the mamrani is in the purchaser’s hands and affects money held by the owners. Since the document itself is held by the purchaser, takkanat ha-shuk was enacted.

So also appears from Nachal Yitzchak (50): “Thus it is in every obligation of takkanat ha-shuk: as long as one does not demand to remove the object, there is certainly no obligation on the owners to pay the purchaser because of takkanat ha-shuk; only when he removes the object for himself is he obligated because of takkanat ha-shuk, and the same applies here.” His words show that what the Shach wrote about mamrani applies only when the borrower wants to remove the mamrani from the buyer’s hand; he cannot remove it until he pays the purchaser his money. But where the borrower does not seek to remove the mamrani, he need not pay, and takkanat ha-shuk does not apply.

Practical conclusion

A. Vouchers are considered like a shtar mamrani, and takkanat ha-shuk applies to them.
B. Therefore, even if the shopkeeper did not receive payment for the vouchers, he is obligated to honor them.

From “Torat HaMishpat”