Until now, all of the lessons dealing with the transfer of ownership and acquisition of things, whether real estate or all types of personal property, dealt with physical objects. The real estate or the personal property could be touched. The topic of this lesson is the transferring and acquiring of rights, something that is not physical. One cannot touch a right granted by a lease to dwell in an apartment. The apartment can be touched physically; however, the right to live in the landlord's apartment is not a physical thing. One cannot touch a pledge made to a charity. The money that is given to charity can be touched. The pledge to charity has no physical properties. (The gifts to charity will be the next lesson's topic, IYH)

How are these nonphysical things trans- ferred and acquired? Are they similar to things not in existence or things not in the control of the seller, neither of which can be sold?

Or can nonphysical things be sold? The assumption in this lesson is that the apart- ment or tree or any other item to which the nonphysical thing relates is in existence and is owned by the seller or donor. Airspace above a person's land and/or structure is very often a valuable commodity. A developer may want to build in the airspace above the owner's structure. Air- space above Reuven's land is not something that one can touch. How can the rights to the airspace be transferred from Reuven to Shimon?
Another related subject discussed in this lesson is a continuation of the topic discussed in lesson 178, (TT562), namely sale of a thing not in existence. In this chapter the thing not in existence is sold but only as an extension of a thing in existence; the thing in existence is being sold solely for the purpose of selling along with it the thing not yet in existence. The rules are generally the same regardless of whether the thing transferred is by sale or by gift.

Only physical things can be transferred and acquired whether by sale or by gift. The smell of a fruit, the taste of honey, and the beauty of a diamond cannot be sold; the fruit, the honey, and the diamond can be sold. A thing that is not a physical entity cannot be acquired by itself. It must be acquired together with the physical thing to which it relates. For example, Reuven transfers to Shimon the right to eat the fruit of Reuven's apple tree or the right to live in Reuven's house, the transfers being accompanied by an act of acquisition such as by kinyan. Shimon has not acquired the right to eat the apples or to live in the house until Shimon performs an act of acquisition for the tree, to eat its fruit, or for the house, to live in it. Shimon must perform an act of acquisition for the house or for the tree as specified in the previous lessons. In all cases the simplest form of acquisition is the kinyan of handing over the handkerchief, as described in prior lessons. Or in many cases the local laws may provide the method of acquisition. The act will not confer ownership of the house or of the tree on Shimon, but rather the right to use the house to live in it, or the tree to eat its fruit.

A written lease may be entered into by the parties. Or Reuven gives Shimon a writing setting forth permission to occupy the house or to eat the fruit of the tree. The writing must state that an act of acquisition was performed to acquire the house for the right to live there, or the tree to eat its fruit. The best practice is for an attorney to prepare such document. But if the lease or other writing states that an act of acquisition was performed to acquire the right to live in the house, or to eat the fruit of the tree, it is legally not effective and neither party has any rights against the other.

In this sentence there is nothing mentioned of acquiring the house (for the right to live there) or acquiring the tree (for the light to eat its fruit). If the writing fails to contain the references to the acquisition of the house or the tree, but states that the parties followed the procedure required by the Rabbis for such transfer of permission to occupy the house, or to eat the fruit, the Beth Din will give it effect as a valid writing evidencing that the proper act of acquisition was performed.

Assume that Reuven has a courtyard containing a small house or other low structure. Shimon wishes to purchase the airspace over Reuven's house or other structure to build in such airspace. Or Shimon may desire the airspace for some other reason than to build there. Shimon may be protecting light and air for his own property that is adjacent to Reuven's property. Shimon may want to preserve the space as empty space to prevent Reuven from building there or Reuven selling the airspace to someone else to build there. (My office was involved in many such transactions, especially in making sure that owners of buildings whose office tenants had a view of the Hudson River would not be blocked out by someone purchasing a small building next door, closer to the river, razing the building and putting up a high rise office building to block the light and view of the existing building.)

Reuven must transfer to Shimon the court- yard (and any houses and structures therein) by Shimon performing a proper act of acquisition of the courtyard (and any houses and structures therein) for the limited purpose of building in the airspace over Reuven's structure. If Reuven transfers just the airspace, the sale is a nullity, except where local custom and local law validates such transactions. However, if Reuven transfers to Shimon the ownership of a house or a structure, Reuven may reserve to himself the airspace over the property transferred. There are times when Reuven will be deemed to have reserved the airspace or area in the courtyard that he sells. For example, Reuven sells just the lower floor of his house to Shimon, "upon condition that the upper apartment be mine." There is now no access to the upper apartment. It is deemed that Reuven has reserved for himself airspace in the court- yard to build a staircase to get to the upper apartment not sold to Shimon.

The subject matter of this lesson is more fully presented in Volume VI Chapters 212 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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