THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 159 (part two) • Sales: Acquiring by Kinyan
As was stated in the last lesson, the buyer hands his handkerchief to the seller and at that instance the buyer owns the item, whether real estate or personal property that is being transferred. I have been asked who keeps the handkerchief? The practice has evolved that the seller returns the handkerchief to the buyer. Since this is the custom the seller may not retain the handkerchief unless he informs the buyer before the buyer gives him the handkerchief, and the buyer consents thereto. There is also a contrary opinion that the seller has the right to retain the handkerchief without so stipulating in advance.

The location of the item to be acquired does not matter. The real property and/or personal property may be located miles away or even in a different country from where the kinyan is performed.

The kinyan is an act of acquisition by itself, even though the real money consideration has not yet been given, no deed or bill of sale has been given, no hazakah was made, nor has there been a lifting, pulling, or delivery of personal property accompanying the kinyan. The transfer is completed when the seller takes hold of the buyer's handkerchief. Once the seller takes hold of the handkerchief, the sale is complete and neither party may rescind the sale. [Technically, the transfer, sometimes, actually takes place moments later when the parties are no longer bargaining about the sale.] The parties may agree that the sale is not complete until the buyer pays the seller the money, or any other terms that a buyer and seller agree upon. But absent such agreement the sale is complete without the payment of the money. There is no requirement that there be witnesses present when the kinyan is made. A point that has been made many times in these lessons and I am sometimes asked, do I really mean that 'In halachah, no commercial transaction requires witnesses'? The answer is 'Yes, witnesses are never required in halachik commercial trans- actions". The witnesses are usually there to be able to testify if there is a disagreement between the parties as to what transpired. Sometimes the presence of the witnesses and instruction for them to write a note of indebtedness creates a lien on the real property of the borrower. But the loan is complete without witnesses. Thus if the seller and the buyer admit that a kinyan took place, then ownership of the item sold passed from the seller to the buyer.

It is not necessary that the buyer be present when the kinyan is made, provided that it is known that the buyer desires the purchase of the item being sold by the seller, or that he would have desired the item had he been aware of the fact it is being acquired for him by purchase or by gift. If there is a great benefit to the buyer from the sale, such as the seller selling an expensive item for a relatively low price, it will be deemed that he desired the sale even if he was not aware of its sale and never expressed a desire for the item. In such event neither the seller nor the buyer may rescind the sale.

In the case of the gift the item belongs to the recipient the moment the donor takes hold of the handkerchief even if the recipient is not aware of the gift, not being present when the kinyan is made. Thus, the kinyan may be completed by the buyer's agent or anyone acting on his behalf to benefit the buyer, whether or not the buyer appointed him as an agent. If the seller tells a third party to acquire on behalf of Reuven, and the third party hands his handkerchief to the seller, the item belongs to Reuven, and the seller may not rescind the sale. Reuven may then either accept the item that the third party acquired on his behalf or refuse to accept it since he was not aware that the third party was acquiring something for him

The parties may not stipulate that ownership of the bargained-for item does not take place immediately.

Although the acquisition of the bargained-for item, whether land and/or personal property, takes place simulta- neously with the kinyan, the delivery may take place at any time that the parties agree and upon, such terms as the parties agree. Since the bargained-for item immediately enters into the ownership of the purchaser, the risk of loss is immediately on him.

The act of kinyan may not be performed on the Sabbath or on Holy Days.

The prohibition of performing the act of kinyan on the Sabbath or Holy Days derives from the fact that if it could be performed, one might then write a deed or a memorandum of the transaction, which is prohibited on these days. If the act is performed on these days it is nevertheless effective. If there would be a loss to the parties by not completing a transaction, the kinyan may be made during the intermediate days of the Holy Days.

The term handkerchief (sudar) has been used in discussing the article given by the buyer or his agent to the seller, but it is merely representative of articles that may be used. The Talmud and the codes speak of a vessel that may be used. This is derived from the Biblical use of a shoe in making a transfer. The term vessel has been described to include any vessel that is man-made, and not repulsive, (The example given of a repulsive vessel is that of a dish made of hardened dung, or a chamberpot) and not incomplete (This excludes a bar of metal, or a part that is to be placed in a manufactured article). An animal may be used. An animal or foul may be used for a vessel of kinyan since they are similar to vessels in that each has a utilitarian use, the ox for plowing, the cow for milk, the sheep for wool, the horse for pulling a wagon, a dog to lead the blind, the chicken for eggs, and so forth. There are some authorities who hold that the animal should be one that can be eaten. Animals that do not have such functions may not be used, such as a rooster or a ram. There are authorities who hold that an animal may not be used to perform a kinyan. But even these authorities hold that an animal may be acquired by kinyan.

The subject matter of this lesson is more fully presented in Volume VI Chapter 195 of "A Restatement of Rabbinic Civil Law" by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.
Questions to quint@inter.net.il