Two lessons ago we commenced the discussion of acquiring things, whether real estate or personal property. Following the lead of the Shulhan Aruch we began with the sales and acquisition of real estate. In the last lesson it was stated that, 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. In addition there are the laws of the land where the real estate is located. Most often these laws will have to be complied with and transfers, made in furtherance of such laws are usually binding in halachah.

The last lesson commenced the discussion of acquiring real estate by the payment of money. In halachah, there are two types of situations where real estate is acquired by the payment of money. It is to be remembered that in both situations the payment of the money in and of itself transfers the ownership of the real estate from the seller to the buyer. The situations differ as follows: in situation (1) there is only giving of money from the buyer to the seller and the buyer becomes the owner of the real estate although he is not given a deed for the real estate. This occurs in a community where the seller does not deliver a deed to the real estate when he is paid the money, or if the possibility of writing a deed does not exist at the moment. In situation (2) the buyer pays money to the seller and this transfers the real estate to the buyer, except the seller gives a deed for the real estate to the buyer. The delivery of this deed is not what transfers ownership of the real estate to the buyer. It is the paying of the money and the deed is given to show that the buyer paid the money to the seller. In situation (2) the giving o the deed does not transfer ownership, it is the payment of the money that transfers ownership and the deed is only to prove that the money has been paid by the buyer to the seller.

There is another type of situation (3), where it is the giving of the deed from the seller to the buyer that transfers the ownership from the seller to the buyer, and the payment, if any, is incidental. There the intent is to transfer ownership by the giving of the deed. We are not here discussing this situation (3).

Situation (1) was discussed in the previous lesson, and situation (3) will be discussed in a future lesson. We are now discussing situation (2). In situation (3) ownership is transferred as soon as the deed is given to the buyer. In situation (2), since the deed is only to show that the buyer received the money, then ownership is transferred when the money is given, although some lapse may occur until the deed is given by the seller to the buyer. The deed may be given first and then the money paid or the money paid first and then the deed is given. In either event the ownership of the real estate was transferred when the money was paid. The deed acts as a piece of evidence to show that the buyer acquired the real estate by paying money to the seller.

There may be times when the parties may stipulate that the buyer has the option to acquire ownership either by the giving of money or the acceptance of a deed. If the buyer has such an option and he gives the money to the seller, the buyer may state that he has accepted ownership when he gave the money. Or the buyer may state that he will not accept transfer of ownership until the deed is given, and since the deed has not been given the, buyer wishes to rescind their understanding and not take ownership even though he has paid the money. Conversely, if the seller has the same option and he has received the money from the buyer, he may notify the buyer that the transfer has been completed. Or the seller may state that he wishes ownership to be transferred with the giving of the deed, and since he has not as yet given the deed he wishes to rescind their understanding.

Assume that the seller, sometime after the sale, in recounting or in recalculating the money, finds that there has been a mistake in the payment-there has been an underpayment. This is ascertained by both parties to be true. (Nowadays, such mistakes in payment are much easier to determine since the payments are largely by checks and bank transfers. In fact, very often the attorneys present at a meeting when there is a transfer of real estate, will agree that all mistakes in calculations will be rectified upon discovery.) The sale stands for the entire realty and is not treated as a partial payment. There is no statute of limitations on finding errors in the calculations.

Assume that Reuven, fears that false charges are being brought against him that will result in his losing his real estate. Reuven sells the real estate to a friend, Shimon, who is going through a charade of being a buyer for cash. After the charges against Reuven are investigated by the government, they are found to be not true, and the charges against Reuven are dropped. The sale made by Reuven to Shimon is void. This holds true even if the parties are satisfied with the sale. The reason is that in essence there was no sale. If the parties want to transfer the real estate from Reuven to Shimon, there will have to be a new transfer.

Assume that Reuven pleads that the sale was a sham and Shimon pleads that it was an actual sale, and there are no witnesses. The plea of Reuven is rejected. Beth Din should examine all the facts to determine if perhaps it was a sham sale. For example. Reuven, the seller continues to enjoys all of the profits of the realty and not Shimon, the buyer.

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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