In the last lesson we began to discuss the laws of sales. There is a moment in time when ownership of an item, whether real estate or personal property is transferred from one person to another person, either from a seller to a buyer, or from a donor to the recipient of a gift. There must be an act of acquisition that is performed by the buyer, or the recipient of a gift. What is the act that acquires the item? This and the following lessons will discuss the act of acquisition for different types of items that are to be acquired. That which may be sufficient in halachah to be an act of acquisition for one type of item may not suffice to acquire another type of item. This lesson and the next few lessons discuss the acts of acquisition necessary to acquire real estate.

In many matters dealing with real estate, the halachah (Jewish law) specifically follows the law of the land. In addition to local laws and customs, there are, in halachah, four methods of acquiring real estate: (1) by the payment of money; (2) by the seller giving the buyer a deed; (3) by the buyer performing an act of hazakah (hereinafter to be referred to as simply "hazakah") to the real estate, which is an act of acquisition; and (4) by a kinyan. This lesson begins the discussion of only method (1). The other methods are discussed in later lessons.

If the parties, such as the seller and the buyer, enter into a halachically binding contract for the sale of the real estate it will be binding on the parties. But even if there is a contract binding on the parties, there must still be an act of acquisition that will transfer ownership pursuant to the terms of the contract.

We shall begin by discussing acquiring real estate by the payment of money in communities where, absent contractual obligations, there is no deed given by the seller to the buyer when the seller receives the money from the buyer. Nowadays this is not normally done. But one can imagine a case where the seller's lawyer's secretary called in sick and there was no one available to type the deed, and the money was passed from the buyer to the seller. For the seller's tax purposes, it was, imperative that the seller transfer ownership to the real estate to the buyer on that day. The parties agreed that a deed, to evidence the sale of the real estate, would be typed and given to the buyer when the seller's lawyer's secretary was no longer ill.

The first thing necessary in effecting a transfer of ownership to the realty (or personal property) is that the parties agree to the transaction. There must be a meeting of the minds of the seller and the buyer that a sale is taking place. After the meeting of the minds there must be an act of acquisition.
Under the first three methods of acquisition listed above, the act of acquisition is completed immediately. That is under method (1) when the money is given. Or, under method (2) when the deed is given. Or under method (3) when the act of hazakah is done. However, in the case of acquisition by kinyan, method (4), the time of acquisition may be delayed until the discussion of the sale is completed.

The laws of the type act of acquisition necessary to acquire real estate apply equally to acquiring a lease of real estate, or mortgaging of real estate, or borrowing real estate; there are the same four methods to make the lease, mortgage, or borrowing binding on the parties. Halachah very often treats a lease as a sale of the realty for the period of the lease.

How does acquiring real estate by the payment of money work? As soon as the buyer gives the seller money for the full or partial payment for the realty, it belongs to the buyer and neither party may rescind the deal. Ownership has been transferred when the seller accepts the money.

The money may be in cash, check, or any other method that has been agreed to by the parties.

In the ordinary sale, the money will be given by the buyer, or someone else (such as a bank) on the buyer's behalf, to the seller. It may be that the seller owes money to a third party, Reuven. The seller may instruct the buyer to give the money to Reuven, and as soon as the buyer gives the money to Reuven, the buyer has performed an act of acquisition and the real estate belongs to the buyer. (In the case of a gift where no money is given by the buyer to the seller, the transfer of ownership will be by one of the other three methods of acquisition.)

There is in halacha an anomalous situation mentioned. Yehudah the owner of a parcel of real estate, tells Zevulun, who is an important person, that Yehudah will give money to Zevulun, if Zevulun will accept the real estate from Yehudah. If Zevulun consents, as soon as Zevulun receives the money from Yehudah, ownership to the real estate passes to Zevulun. The consideration to Yehudah is the fact that an important person, Zevulun, accepted the gift from him. This is known as hanahah. (See Lessons 50-52 TT432-434.)

Asssume that Reuven owes Shimon $100 and the time for payment has arrived. Shimon offers to sell his real estate to Reuven for $100. Reuven agrees and gives Shimon the $100 for the real estate. Shimon is not permitted to plead that he is seizing the $100 for the debt owed to him and that if Reuven wants the real estate, Reuven will have to pay an additional $100. Shimon is not permitted to plead that he really had no intent to sell the real estate to Reuven. Shimon must transfer ownership to the real estate, and he must try to collect the debt money in another way. Of course, Shimon can ask the Beth Din to seize the real estate he just sold to Shimon, in repayment of the debt.

Assume a situation where Naftali wants to purchase Gad's real estate.

Naftali does not yet have the money available, and he needs ten days to raise the money. To induce Gad not to sell the real estate to anyone else, Naftali gives to Gad negotiable bonds as security that he will indeed raise the money and conclude the purchase. The giving of the security is not an act of acquisition. The collateral is not given as money payment, but only as a guarantee if Naftali does not pay the purchase price. However, if Nafatli gave the collateral with the statement that the Gad can keep the collateral as part of the purchase price, then this is considered as paying part of the purchase price. Then Gad cannot sell the real estate without giving Naftali the time necessary to raise the balance of the purchase price.

The subject matter of this lesson is more fully presented in Volume VI Chapter 190 of"A Restatement of Rabbinic Civil Law" byE. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il

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