As will IYH be seen in subsequent lessons, there are specific methods by which things are acquired. Real property is acquired by certain acts of acquisition, personal property objects are acquired by certain acts of acquisition. These all have a Torah basis. The Rabbis of the Talmud introduced a novel method to effect acquisition of all types of property, whether real estate and/or personal property, by means of a kinyan.

A kinyan serves one of two functions:

(1) the acquisition function; or,

(2) the obligation function.

(1) The acquisition function may be used to acquire real property, and/or personal property, including animals, a leasehold interest in real property or any combination of these items. A kinyan may not be used to acquire money or negotiable instruments.

A kinyan is performed by the purchaser giving his handkerchief or some other object such as a pen, to the seller. When the seller takes hold of the pen or handkerchief or other object, the purchaser now owns the object being transferred, whether it is real property and/or personal property. Thus, in our kollel when I sell the Brooklyn Bridge or the World Trade Center to one of the students, and he hands me his pen (all the students of our kollel have special kiynan pens supplied by Ben Rabinowitz) the student owns the Brooklyn Bridge or the World Trade Center, that I have sold to him. (Actually the student does not own the Brooklyn Bridge until we are no longer discussing the terms of the transaction.) When he hands me his pen, he also hands me the ten dollars, or other agreed upon amount, including a mortgage for part of the purchase price, that he is paying for the Brooklyn Bridge or World Trade Center. He may want me to give him a deed to the Brooklyn Bridge or World Trade Center, but the ownership has passed to the student immediately and the deed is only evidence of his ownership. The location of the object that is sold does not matter; ownership passes no matter where the object is located.

There is no requirement that witnesses be present when the kinyan is performed. Witnesses are required solely in the event that there is a disagreement whether or not the kinyan has been performed, and what were the terms of the sale.

The practice has evolved that he seller returns the handkerchief or other object to the buyer or other person who furnished the object.

The Talmud and the codes speak of the objects (vessels) that may be used to perform a kiynan. The term vessel includes any movable object that is man made, not repulsive, and not incomplete. There are opinions both ways whether an animal may be used to perform a kinyan. Some of the things that cannot be used are products grown in the earth; an article that is prohibited to be used, money, whether a coin or paper money that is in circulation, a promissory note, a mortgage and flowers. The article used for a kinyan need not be worth a perutah. The article used may not belong to the seller. It may belong to the buyer or anyone else who gives the article to the seller on behalf of the buyer to perform a kinyan.

The kinyan is binding although there is no other formal act of acquiring ownership.

The kiynan mode of acquisition is not to be confused with the barter mode of exchanging articles. In the latter case, there is usually an economic relationship between the objects being bartered. In halachah barter is referred to as chellippin. In the case of kinyan, the pen or handkerchief may be worth a few cents while the object acquired may be worth millions of dollars. The payment for the object will in such case accompany the kinyan otherwise the seller will not take up the pen of the buyer to signify his intent to complete the sale.

There is no limit as to how many things or combination of things and types of things that may be acquired by one act of kiynan.

Almost all that has been said about a sale and purchase of an item also holds true for gifts. Reuven may make a gift to Shimon of Reuven's yacht that is anchored miles away by Shimon handing over to Reuven Shimon's or anyone else's (other than Reuven's) pen or handkerchief or other article.

(2) The obligation function takes the place of consideration in a contract. Once a kinyan has been performed the person who undertakes the obligation to perform must perform. For example, Reuven promises to sell to Shimon 100 bushels of wheat that he will grow two years hence (a futures contract). A thing not in existence cannot be sold in halachah. Here there is not a sale of the future wheat. Rather it is an undertaking by Reuven that he will sell the wheat. Reuven is the promisor; the subject of the promise is the wheat, though it is not yet transferred. As soon as Shimon hands his handkerchief to Reuven and they have completed their discussion of the transaction, the obligation of Reuven to sell, and the other terms of the transaction is binding on Reuven. To make Shimon bound to perform his side of the agreement, Reuven should hand a handkerchief, not Shimon's, to Shimon. Thus both sides are bound to the terms of their agreement.

One may bind himself to perform certain acts, such to act as a bailee, to enter into a partnership, to divide commonly owned assets, to be liable as a surety, to be bound by arbitration to be bound by the rules and practices of an industry, to appear before a certain Beth Din, to act as an employee, to act as an employer, to enter into independent contractor arrangements, and almost any type of promise that a person can think of. All of such promises can be become binding when a kinyan is performed.

A very common type of this kiynan that most of us witness takes place at a wedding. The groom picks up a pen or handkerchief or other object belonging to the rabbi or anyone other than the groom. He does this to signify that he undertakes the obligations imposed upon him by the kethubah instrument. When I witness the kethubah I ask the rabbi if the groom has read or has had the kethubah read to him so that he knows what he is undertaking. On very rare occasions will the groom have had the kethubah read to him and/or explained to him. Very often the rabbi will explain to me that there is no time to do this now. I respectfully decline to serve as a witness. (There is also a similar obligation on the witnesses to read and understand what is in the kethubah. When I perform a wedding I have a translation of the kethubah that I have prepared read to the groom and the witnesses and ask them if they understand what the document contains.)

When our Beth Din sits as an arbitration panel, the parties to the dispute sign an instrument that states that they will be bound by the decision of the arbitrators, and that a kinyan has been performed to obligate them to abide by the decision.

An exception to the binding obligation of a kinyan was mentioned in last week's lesson: While there is an obligation to lend money to those in need, this obligation is not enforceable in Beth Din. This is true even if the proposed lender promised the borrower the loan and even if a kinyan was made to lend money.

Over the ages the kinyan has become the most reliable method of having obligations become binding. It is used in halachik wills, gifts, contracts and other documents where a person undertakes to perform.

Although the topic of kiynan does not appear until chapter 195 of Hoshen haMishpat, I placed it here since the term kinyan is commonly used in all chapters of Hoshen haMishpat.

The subject matter of this lesson is more fully discussed in Volume VI, Chapters 195 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores.

Address comments to quint@inter.net.il

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