THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 159 (part one) • Sales: Acquiring by Kinyan
The Mishna and the Talmud in discussing methods of acquisition of objects, whether real estate and/or personal property give specific methods, as are shown in the prior four lessons and in the next series of lessons. The discussions generally do not mention the acquisition by kinyan or kinyan sudar as it is known in halacah.

Kinyan has two distinct functions. In Function #1, kinyan effects a present acquisition of an item, whether personal property or real property. (This function is hereinafter referred to as the "acquisition function.") In Function #2, it means that a person undertakes an obligation, whether to perform or to sell. (This latter function is hereinafter referred to as the "obligation function.")

A 'sale' is part of Function #1. 'An agreement to sell' is part of Function #2. Under Function #1, a sale takes effect presently, and ownership of the item, whether real estate or personal property, is currently transferred from the seller to the buyer. Under Function #2, an agreement to sell contemplates transfer of ownership from the seller to the buyer sometime in the future; the future time may be a moment after the agreement is signed, or many years later. Both of these functions are discussed in these lessons.

Regarding the acquisition function, (Function #1), the current usage of the term kinyan has to be distinguished from the current usage of the term chelippin (barter or exchange). The word chelippin originally only meant that the first party exchanges his realty and/ or personalty for the second party's realty and/or personalty. There is usually an economic relationship between the items being bartered by one party and the items being bartered by the other party, which is not present in kinyan. The word chelippin, which had at first referred only to barter, was expanded during Talmudic times to take on another and broader meaning that also included what we now call kinyan. Subsequently the meanings of the terms were distinguished and the term kinyan came to mean acquisition; and barter was designated as chelippin. (The laws of chelippin are described in a future lesson.)

In its acquisition function (Function #1), the word kinyan technically means acquiring. However, it has taken on the meaning of one specific means of acquiring items. The purchaser hands to the seller, an item, usually a handkerchief (sudar), (or any small item such as a pen), in exchange for the seller selling an item and there need not be the slightest economic relationship between the things being sold and the handkerchief. But as soon as the handkerchief is handed to the seller, as explained in these lessons, the ownership of the bargained things passes and the transaction is completed. The person who hands his handkerchief to the seller is now the owner of the thing sold. Almost all that is said about a sale and purchase of an item is also true for a gift. The recipient of the gift gives his handkerchief to the donor and the recipient immediately acquires the gift from the donor when the donor takes hold of the recipient's handkerchief. There is no limit as to how many things or combinations of things and types of acquisition may be acquired by one act of kinyan.

[Regarding Function #2, As stated in lessons 50, 51 and 52 (TT 432, 433 and 434), with the few exceptions there shown, there is no other way for the parties to bind themselves for future performance of an act or future delivery of goods. A mere promise to perform is not legally binding. The kinyan in its role as Function #2, is the method that was devised to make a commitment for a future act binding on the promisor, whether he promises to sell something or to perform some act not involving a sale.

We shall first discuss the acquisition function of kinyan, (Function #1). The kinyan may be used to acquire: realty, personalty, a leasehold interest in realty, or any combination of these items. If a person borrows realty from a lender, The borrower hands his handkerchief to the lender and the borrowing is complete. A person may want to borrow realty to store his things thereon for a certain period of time until his own premises are ready to store the things there.

Kinyan may not be used to acquire money. Money does not have any intrinsic value. It only represents purchasing power so long as the government has not changed the form of the currency, which it may do at its convenience. Kinyan may also not be used to acquire negotiable instruments.

Negotiable instruments in halachah are similar to money in that they are deemed not to have any intrinsic value but rather represent an indebtedness. Only things with intrinsic value may be acquired by the performance of a kinyan.

How does the kinyan work? The buyer gives his handkerchief to the seller and may or may not state that the handkerchief is given to the seller so that the buyer will obtain ownership of the thing that the seller is selling to the buyer. The seller takes hold of the handkerchief. As soon as the handkerchief reaches the hands of the seller and the parties are no longer bargaining in this transaction, ownership of the bargained-for items passes to the buyer, and the parties are legally bound and neither party may thereafter retract. "No longer bargaining', means that the entire discussion has been completed. If they are still discussing minor details, the bargaining is not completed, and either party may terminate the transaction that has not yet been completed. In this respect kinyan is weaker than the other modes of acquisition. In the case of acquisition by money or by deed or by hazakah (physical possession), the transaction is completed at the moment of delivery of the deed or the money or taking possession and neither party may then rescind the transaction. In the case of kinyan, however, either party may rescind as long as the parties are still discussing the transaction, even though the handkerchief has already been taken by the seller. The theory is that the transaction of kinyan takes so little time that the swiftness of the kinyan may have a party entering into the kinyan without giving it proper contemplation.

The seller need not take hold of the entire handkerchief, but it is sufficient that he takes hold of an area at least five square inches. Or if the seller holds less than five square inches if he can pull the handkerchief away from the buyer, the kinyan is still valid.

The subject matter of this lesson is more fully presented in Volume VI Chapter 195 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