Siman 195

Kinyan chalifin is a kinyan for both land and movable property, as it is written: "to confirm all things, a man plucked off his shoe and gave it to his neighbor." How is the kinyan performed? The buyer gives the seller a vessel or any object whatsoever and says to him: "Acquire this in exchange for the land" or "in exchange for the movable property that you sold or gave to me." And it is not specifically required that he say this to him; rather, since he gives it to him with this intent, it is a kinyan. And so we practice in every kinyan sudar, that he says nothing but merely gives him the sudar and the seller grasps it, for behold, he gave it to him with this intent since they spoke prior to this regarding the sale or the gift; see at the beginning of siman 241. And once the seller has seized the sudar, the land or the movable property is acquired by the buyer or the recipient of the gift wherever it may be, even though he did not perform chazakah, did not give money, did not write a deed, and did not perform meshikhah. And neither of them can retract after the conclusion of the matter, as will be explained, unless he "goes in and out for the money" as written in siman 190. And even if there are no witnesses to the matter, if only they admit that there was a kinyan between them, for witnesses were not created except so that they should not deny one another. And likewise, if they performed a kinyan before disqualified witnesses, it is a kinyan since witnesses are not required at all.

The kinyan must specifically be with an object belonging to the buyer and not the seller, for this is why it is called kinyan chalifin, as it is an exchange where the buyer gives him the sudar and the seller conveys to him the land or the movables. And likewise, if another person conveyed his sudar to the seller so that the buyer should acquire, the buyer has acquired. And even if he conveyed it not in the presence of the buyer, if only it is known that the buyer is pleased with this purchase. And regarding a gift, they may convey it without the knowledge of the recipient at all, for it is certainly comfortable for him, and one may acquire a benefit for a person not in his presence. But regarding a purchase, where it is possible that he does not desire to buy, he has not acquired when he did not know of it at all; and even if it is revealed afterward that such was his will, since at the time of the kinyan it was not clarified that he desires this, it is not a kinyan at all. However, when it is known at the time of the kinyan that such is his will, they may acquire on his behalf even though he did not appoint him as a messenger; since such is his will, it is a benefit for him. And sometimes, even without his knowledge at all, they may acquire on his behalf, such as when the seller says to someone: "Acquire this purchase for such and such money on behalf of so-and-so," and this person gives his sudar and conveys with a kinyan sudar to the seller on behalf of that so-and-so. And it will be explained in siman 235 that the buyer may retract but not the seller, and since it is in the power of the buyer to do as he wishes, it is entirely a benefit, and one may acquire a benefit not in his presence [Netivot HaMishpat]. And some say further that if the purchase is worth more than the money the seller is asking, another may acquire for the buyer without his knowledge at all, even if he would not have the power to retract, because in such a case it is a benefit, and one may acquire a benefit not in his presence [Ktzot HaChoshen]. However, this is specifically when this person knows that the buyer needs such a purchase in any event, and then even though it is not known to him that his will is to buy from this specific seller, he may acquire on his behalf. But if it is not known to him at all that he needs such a purchase, certainly his kinyan is nothing, for it is a known matter that many people, when they do not need the object, will not buy it even at a cheap price [it appears to me].

According to what has been explained, that the kinyan chalifin is that he gives the sudar to the transferor and he transfers to him the land or the movable property, one should not wonder at our custom that in every kinyan sudar the transferor does not retain the sudar for himself, but rather holds it in his hand and returns it immediately. For even in the time of the sages of the Shas, the custom was so [end of chapter 5 of Nedarim], and the essence of kinyan sudar is on the condition that it be returned, and the transferor cannot retain it unless he explicitly stated that he would retain it. For since the custom is so, presumably when he consented to the kinyan sudar, his intention was not to retain it for himself [Ramban and the Rosh and the Ran there]. Rav Hai Gaon wrote similarly in Sefer HaMikkach. However, there are some of our teachers from whose words it is implied that when it is the will of the transferor to retain the sudar forever, he may retain it [Rashi Kiddushin 26b and Tosafot ibid. 6b and the Rambam chapter 5 of Mechirah law 7, and the words of the Ran there require further study, and examine it closely].

As has been explained in section 2, that it is possible to effect an acquisition even not in the presence of the buyer, therefore it became customary to perform the kinyan with the sudar of the witnesses even in the presence of the buyer, because most acquisitions are not in the presence of the buyer; so wrote our teacher, the Rema. And even though in our days most acquisitions are in the presence of the buyer, nevertheless it is not the custom to be exacting that the buyer himself should take his sudar and effect the acquisition to the seller, but rather one of the judges or one of the witnesses takes his sudar and effects the acquisition to the seller. And they have no loss in this, for behold, the seller does not withhold it from him, as I have written.

Even though the one performing the kinyan did not grasp the entire vessel but only a part of it, and a part of it remained in the hand of the buyer, he has acquired with it. This is provided that he grasps from it the measure of a vessel, which is three fingers by three fingers, for the name of a vessel is upon this regarding the matter of tumah in a garment of wool or linen, as the Rambam wrote in the twenty-second chapter of Kelim. And even though in other garments three handbreadths are required, as he wrote there, this is from a decree of the Torah and not because there is no importance in less than this. For behold, there are some of the Tannaim who hold that in other garments even three handbreadths do not contract tumah, as is explained in the second chapter of Shabbat; and is it to say they have no importance? Rather, it is a decree of the Torah [and even though at the end of the third chapter there it is explained that for a wealthy person there is no importance in less than three handbreadths, this is regarding midras and not for other forms of tumah, as the Rash wrote in the twenty-eighth chapter of Kelim, mishnah 8]. And if he grasped less than three fingers, it is not effective unless he grasps with such strength that he is able to pull the entire vessel and bring it to himself, such as when the second person is not grasping it with a strong hand, for then it is considered as if it is entirely in his hand. And some say that even this is not effective, for it is not called grasping by the fact that he can pull it and bring it; and only regarding the giving of a get does it hinder if the husband can pull it back, because this is not "severance," but it is not because of the pulling that it is considered his.

It has already been explained that according to most poskim, the seller cannot withhold the vessel or cut off a portion of it, for an ordinary kinyan sudar is on the condition that the vessel be returned. Nevertheless, one may not effect a kinyan with a vessel without the knowledge of the owner of the vessel; for how can he acquire another's vessel even for a moment without the knowledge of the owners? Therefore, one who took his fellow's sudar without his knowledge and effects a kinyan with it, it is not a kinyan. And some say even with a borrowed vessel it is not a kinyan unless he lent it to him specifically to effect a kinyan with it, and our teacher, the Rema, ruled accordingly. And there is one who says that even the sudar of the buyer should not be taken except with his knowledge or in his presence, but this does not seem to be so.

One only acquires with a vessel, such as a scarf or another object or a finished, completed vessel, to the exclusion of a piece of merchandise or a piece of metal that is not a vessel, which one may not acquire with. We learned this from that which is written, "a man drew off his shoe," implying that we require something similar to a shoe, which is a finished and completed vessel that is worn on the foot. And even though it does not possess the value of a perutah, for the Torah was not particular about its value but rather about the status of a vessel, provided that it is made from a significant material, to the exclusion of a vessel made from cattle dung, which one may not acquire with; for we require something similar to a shoe, which is made of leather, which is a significant thing. And so too all types of vessels, even if they are of lesser quality than leather, nevertheless, since they are significant to people and they use them, even earthenware vessels, one may acquire with them. And so too one does not acquire with a vessel whose use is for a degrading purpose, such as a chamber pot for urine [Nimukei Yosef]. And so too one does not acquire with an object that is forbidden for benefit. And one does not acquire with produce, for they are not for use but only for eating, even though produce is certainly a significant thing, yet we require the status of a vessel similar to a shoe. And also not with a coin, for it is not like a vessel, and even though it can serve as a weight to weigh another thing against it, as the weight of a coin is known, and similarly it is fit to hang around the neck of his daughter for ornament, nevertheless, since it is not designated for these uses and its primary purpose is for expenditure, it is not a vessel. Therefore, a coin that was invalidated and does not circulate for expenditure is like a vessel, because he designates it for some use, and it will be explained in siman 203. But a living creature is called a vessel and one may acquire with them, for since one raises the ox for its work, and the lamb for its wool, and the goat for its milk, and the hen for its egg, and one benefits from them constantly, they are similar to a vessel. But other movable objects that are not fit for use at all are like produce and not like a vessel, and one does not acquire with them. And so too an invalidated coin that is not fit for any use is not like a vessel [it appears to me]. And even though for the purpose of a business venture even living creatures are called produce, as is written in Yoreh Deah siman 177, and it is an explicit verse, "and the fruit of your cattle," and so too regarding Maaser Sheni they are called produce as is explained at the beginning of the third chapter of Eruvin—this is certainly so, since they are born body from body, they are similar to produce; however, since they also have the significance of vessels, they are considered as vessels for acquisition. However, it appears to me that a rooster and a male ram and a dog and their like, with which one does not perform work, are not called a vessel. And indeed, there are some of the Rishonim who wrote that even a lamb is not a vessel [Hagahot Ashri, chapter 4 of Bava Metzia], and although we do not rule accordingly because they are fit for shearing and milk, but in any case, those that are not fit for this nor for work do not have the law of vessels. And in several of the Rishonim we find only an ox and a donkey [the Levush and the Sma wrote that the reason regarding a coin is because the form is destined to be nullified, and according to Rashi and Tosafot in Bava Metzia 45b, this is only according to the one who says that a vessel is not required].

There is one who gave a rule regarding this, what is called a "keli" and what is "piri": that anything made by human hands is a keli, and anything made by the hands of Heaven is like piri [Sma], except for living creatures and currency for the reason that has been explained. Therefore, one does not acquire through a detached rose, even though it is an important thing and is not intended for eating but only for smelling and the like. Therefore, the custom is to write at the end of the deed, "and we acquired from him with a vessel fit to acquire with." "With a vessel" is to exclude piri and movables that are not a keli. "Fit" is to exclude prohibited items of benefit and that which is made from bovine dung. "To acquire" is a term of importance; the intention is to indicate that they acquired with the vessel of the buyer, for "to acquire" implies acquiring with this that which he bought. And there is one who wrote that if this is not written in the deed, one cannot extract money with this deed. But in our days we have never heard of anyone who is fastidious about this, and in many deeds they do not write this wording at all. The simple custom now is to receive a kinyan sudar without any concern regarding this wording, and even when they write the deed, they are not fastidious at all about this wording.

There are those who say that a kinyan is not effective unless he transfers the sold object to him immediately. However, if the buyer said to him, "Acquire this sudar and transfer to me your such-and-such object or your such-and-such land after thirty days," he has not acquired it, because at the time when the buyer is to acquire it, the sudar has already been returned. But if he said to him, "Acquire on the condition that you transfer to me the object and the land from now and after thirty days," he has acquired it, since the kinyan begins from now. And likewise, even if he did not say to him "from now," but only "on the condition," it is sufficient, for anyone who says "on the condition" is like one who says "from now." And likewise, "from now" without "on the condition" is sufficient [Shach]. And if he performed a kinyan without specification, it is effective, for presumably the intention was "from now," as he would not act to no purpose. Therefore, even if the seller stipulated to him that he should not take the purchase into his possession until after thirty days, nevertheless we say that his intention was that the kinyan is immediate, only that he should not take it into his possession until after thirty days. And specifically when he said, "You shall not acquire until after thirty days," he has not acquired [Netivot HaMishpat]. And when he transferred it to him in a foreign tongue, the dayan must know what the intention of the language was.

An incident occurred regarding Reuven who had animals to slaughter and sold the hides to Shimon with a kinyan sudar, and while he was leading them to slaughter, the animals fled and were lost. The Rosh, of blessed memory, ruled that the loss is upon Shimon. And even if he said to him, "These hides I am selling to you to give them to you after the slaughter," the intention is not that the kinyan should be after the slaughter, but rather that he cannot give them to him until after the slaughter and the skinning, but the kinyan is immediate [Taz]. And see what I wrote in siman 199 regarding one who gave a dinar to a butcher to give him meat from a slaughtered animal and the ox died, that he loses the dinar.

Even though kinyan sudar is more powerful than money or a document, as has been written in siman 191, section 3, nevertheless, in one matter it is more lenient than other kinyanim. For in all methods of acquisition, neither party can retract after the time of "within the duration of a greeting," but regarding kinyan sudar, the sages, of blessed memory, said that each of them may retract as long as they are occupied with that same matter [Bava Batra 114a]. And even if they are only occupied with the details of the sale and not with the essence of the sale, they may retract. But if they ceased from the matter entirely, then the matter is established and neither of them can retract. And the reason is because the sages, of blessed memory, saw that this kinyan is performed suddenly without contemplation because it involves no exertion; they gave them time for retraction so that they may settle their minds and contemplate this, and if they regret it, they may regret it. But regarding other kinyanim, such as money, a document, and chazakah, they contemplate well since the kinyan is with the object itself, and a document requires deliberation and intent in its writing. And similarly with the kinyan of ma'amad sheloshtan, even though it is not with the object itself and is performed in a single moment, nevertheless, since they all gathered and the transferor knows that they will immediately depart from one another, he presumably contemplated well beforehand [Levush with an additional reason, and all is well; and examine this carefully].

There is one who wrote that if one specified at the time of the kinyan sudar without retraction, or if they wrote a deed regarding the kinyan sudar, or if they accepted judges for a compromise with a kinyan, even though they are occupied with that same matter, they cannot retract after kedei dibbur; for every condition in monetary matters is valid, and regarding a deed there is no retraction, and regarding a compromise there is no reason to say that after they selected judges and accepted with a kinyan sudar to fulfill what they would do, it would be within their power to retract, and this is not an honorable way toward the judges [Levush], and they certainly deliberated beforehand. According to this, if they accepted with a kinyan sudar that they would rely on judges whom they would select, they are able to retract as long as they are occupied with that same matter. However, has it not been explained in siman 12, section 7, that regarding a compromise they must first select the judges and afterwards accept with a kinyan sudar to rely upon them?

Just as land is acquired through one of the four modes of acquisition that have been explained, so too the rental of land is acquired through them. For example, if one rented out his house or his shop or his field to him, once he gave him money, or wrote him a deed stating that he is renting it to him and handed him the deed, or the renter performed chazakah in it, neither of them can retract. For a rental for the duration of the rental period is like a sale in several matters. So too, the borrowing of land is acquired through one of these methods. Money acquires in rental and borrowing without a deed even in a place where, regarding a sale, they do not acquire without a deed, as I wrote in siman 190; for since this is not a permanent acquisition, their minds are resolved even without a deed. And it appears to me that in a place where, according to the law of the land, one who sits in a shop or a house without a deed from the landlord can claim it is his, and in those places many landlords are careful not to rent out without receiving a deed from the renter, the acquisition is not finalized until the writing of this deed and until the deed reaches the hand of the landlord. And some say that the acquisition of chalupin is not effective for rental and borrowing, and similarly for a gift on condition of return, for anything that returns to the owners without loss is like a benefit of pleasure which is not monetary value to be acquired through chalupin [Tosafot, Arachin 30a]. But the borrowing and rental of movable objects which decrease in value through their use, and similarly one who rents land to dig in it, is acquired through chalupin according to everyone [Netivot HaMishpat]. And some say further that a gift on condition of return is acquired through chalupin in any case, for this is like a complete gift for its time [Ketzot HaChoshen according to the Rosh, and therefore the Rema omitted it].

And just as a sale is not acquired through a loan, so too rental and a mashkona, for they are like a sale and are not acquired through a loan even under the law of money, for rental for a day is a sale. The matter of a mashkona was explained in Yoreh Deah siman 172. And through the benefit of the forgiveness of a loan, which will be explained in siman 204, it is acquired in rental as well [Sma]:

The great later authorities wrote that striking palm to palm, which is called hand-schlag, to establish a sale or a gift or a rental in a place where the custom of the merchants is to do so—as written in siman 201 that it is a valid kinyan—its law is like that of kinyan sudar; for as long as they are occupied with that same matter, they may retract. These are words of reason, and such is the primary law.

One may acquire via kinyan sudar even at night, and some say it must be before the light of a candle or the moon so that the witnesses may recognize who the buyer and the seller are [Sma, siman 5]. This is not a requirement that invalidates the act, for a kinyan does not require witnesses, as I have written. On Shabbat and Yom Tov, it is forbidden to perform a kinyan, and those who do so are struck with the rabbinic lashing; however, if they performed a kinyan, even though they committed a transgression, nevertheless the kinyan is valid, as I have written in siman 235. On Chol HaMoed, it is permitted for a matter that would involve a loss. The rest of the laws of kinyan chalupin will be explained, with the help of Heaven, in siman 203.