Responsa for Bava Metzia 216:6
למכור ברחוק ולגאול בקרוב ברע ולגאול ביפה לית בה משום דינא דבר מצרא
[Likewise, if it is sold] to its original owner, it is not subject to the law of pre-emption. If one purchases from or sells to a heathen, there is no law of pre-emption. 'If one purchases from a heathen' — because he [the purchaser] can say to him [the abutting neighbour], 'I have driven away a lion from your boundaries.' 'If he sells to a heathen' — because a heathen is certainly not subject to [the exhortation], <i>'And thou shalt do that which is right and good in the sight of the Lord</i>.' Nevertheless, he [the vendor] is placed under a ban, until he accepts responsibility for any injury that might ensue through him [the heathen]. A mortgage is not subject to the law of pre-emption. For R. Ashi said: The elders of Matha Mehasia told me, What is the meaning of mashkanta [a pledge, mortgage]? That it abides with him [the mortgagee].<span class="x" onmousemove="('comment',' [ [H] from [H] 'to rest', 'abide'. The mortgagee is considered the nearest abutting neighbour; v. B.M. (Sonc. ed.) p. 396, n. 6.] ');"><sup>6</sup></span>
Teshuvot Maharam
A. Since C bought A's ground and gave away his own ground in partial payment thereof, he no longer owns the latter ground. Since a person who buys real property desired by an abutter, merely acts as the agent of such abutter (B.B. 108a), C must deliver to B the ground he bought from A, receiving in exchange the ground B bought from D plus a refund of his money. Were B unable to acquire such ground from D, he would have repaid C with money for the ground C gave to A; the value of such ground would have been determined by experts and not by C. C would not have been able to claim that his ground was very precious to him having for him the value of the "estate of Bar Marion", for such claim is valid only when a person is seeking to take away the property of another (in exchange of his own) against the will of the latter who may plead that his property is very precious to him. But in our case C has sold his property to A, and is only entitled to its market price. Moreover, even if the aforementioned sale were not concluded as yet, and an understanding merely existed between A and C that C convey his ground to A on condition that the conveyance of A's ground be without any interference on the part of the abutters, A could not have insisted on exchanging his ground for ground exactly similar to that of C. A could not have attached special importance to C's ground as having the value for him of the "estate of Bar Marion", for the reason already stated. Therefore, B would have been able to pay A with other ground, located in the same town, of equal value as that of C. Many persons have the erroneous notion that the preemptive right of an abutter is void whenever an exchange or real property is involved. Were this true, the parties to a sale of immovables would always add a small piece of ground to the purchasing price in order to place the transaction in the category of exchange of real property, thus turning into a hollow mockery the ordinance of the Rabbis who created the law of preemption for humane reasons. Therefore, whenever we suspect that the circumstances of a sale of real property were specially arranged in order to circumvent the law of preemption, we sustain the preemptive right of the abutter.
SOURCES: Cr. 193; Am II, 199, 200.