Lesson # 160 (part three) • Sales: Acquiring by Kinyan There are certain things that may not be used to perform a kinyan. Some of the things that may not be used to perform a kinyan are: (1) a product grown in the earth; thus fruits and vegetables may not be used as the item that is given by the buyer to the seller in exchange for the item to be acquired. (2) an article that is prohibited for a Jew to use; for example an article that was used in idolatrous worship or meat and milk that were cooked together. (3) money, whether a coin or paper money that is in circulation; a coin may not be used since its manufacture was not as a vessel but rather for currency. Thus even if a coin is used as an object, such as for a piece of jewelry, it may still not be used. However, a coin no longer in currency may be used. (4) a promissory note; a promissory note does not have intrinsic value; it represents money owing. As we shall see in a future lesson, a promissory note is not acquired by being lifted by the person to whom it is being transferred. (5) a mortgage; a mortgage too does not have intrinsic value but represents money owed by the owner of the real estate to the person to whom he owes money. and (6) flowers. They are not vessels and are generally used just for their sweet odors. There is no agreement among the authorities whether real estate may be used as the article to perform a kinyan. The buyer gives the seller of an object a small piece of real estate belonging to the buyer in exchange for the bargained object. The article used in a kinyan need not be worth even a perutah, which is the smallest coin of the realm. The item to be used, whether a handkerchief or any other item, may not belong to the seller. It may belong to the buyer, or the buyer's agent, or to any other person who gives his handkerchief to the seller on behalf of the buyer to perform a kinyan. Very often it belongs to a person who is witnessing the transaction. It may not, however, belong to a third party who does not give permission or who does not know that his handkerchief is being used for a kinyan on behalf of the buyer. This in spite of the fact, as stated above, that the handkerchief is invariably returned to the buyer, who can give it back to the third party. There is an opinion that takes the halachah of this last sentence even a step further and holds that even if the buyer borrowed a handkerchief, he may not use it for a kinyan without the permission of the lender of the handkerchief unless the buyer borrowed it for the specific purpose of using it for a kinyan. The kinyan is binding even though there is no other formal act of acquiring ownership. As was stated several times in these lessons, the kinyan action may serve one of two functions. Until now we spoke of the acquisition function, that is, when the seller takes hold of the handkerchief, the buyer owns the object that is being sold or transferred to the buyer. The second function is where the person who performs the kinyan obligates himself to do or perhaps refrain from doing a certain act. Assume that Reuven and Shimon want to enter into a contract whereby Reuven will paint Shimon's house starting two weeks hence, and Shimon will pay to Reuven $1,000 when the paint job is done. Reuven obligates himself to do the painting by taking hold of Shimon's handkerchief which Shimon offers to Reuven, and Shimon obligates himself to pay the $1,000 by Shimon taking hold of Reuven's handker- chief. Or else, Reuven promises to sell to Shimon 100 bushels of wheat that Reuven will grow two years hence. A thing not in existence cannot be sold. Here there is not a sale of the future wheat. Rather it is an undertaking by Reuven that he will sell the wheat. Reuven is the promisor; the subject of the promise is wheat, though it is not yet transferred. As soon as Shimon hands his handkerchief to Reuven and they have completed their discussion of the obligation of Reuven to sell, the transaction is binding upon Reuven. The other terms of the obligation. such as price, payment, and any other terms, should also have been discussed and should be incorporated into an agreement. To make Shimon bound to perform his side of the agreement, Reuven should hand a handkerchief to Shimon. Some other matters or obligations that are effected by a kinyan include, but are not limited to, (1) an obligation where one did not exist, for example, Reuven obligates to wash Shimon's car; (2) a conditional sale, for example, Reuven will sell to Shimon Reuven's car for $1,000 if Shimon sings a song; (3) things not yet in existence, for example, Reuven will give Shimon the bookcase that Reuven will construct next week. (4) a person not yet in existence, for example, Reuven will make a crib for Shimon's son who is not yet born. Or... one binds oneself to perform certain acts, such as to enter into a partnership, to divide commonly owned assets, to be liable as a surety, to waive one's rights or to forgive an indebtedness, to be bound by arbitration, to be bound by the rules and practices of a trade or industry, to appear before a certain Beth Din, to permit ineligible witnesses and/or judges to participate in the litigation, to act as an employee, to act as an employer, to enter into independent contractor arrangements, and many others. Actually, the list is very long and can include almost any legal arrangement into which the parties wish to enter. In fact, in halachah, the kinyan that binds parties is the most frequent way to make agreements enforceable. 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.
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