The Deal Is Not in the Words

About This Talk

Sefer Kinyan opens with Hilchot Mechirah, and its first rule is that nothing is acquired by words alone, even when buyer and seller agree on a price and tell witnesses to testify; such a deal is as if they never spoke, though a sale completed through a recognized kinyan needs no witnesses and neither side may retract. Chapter 1 lists three ways to acquire land: money (where deeds are not customary; where they are, not until the deed is written), a deed (even on paper, a shard or a leaf, effective without witnesses, but on its own only when one sells a poor field; other land also needs payment), and chazakah, an act of ownership that brings benefit, such as locking the entrance, raising a fence to ten handbreadths, widening an opening, or setting down or removing a stone for irrigation. Land is not acquired for less than a p'rutah. Chazakah outside the seller's presence requires him to say go, take possession and acquire; handing over the key of a house or the bucket of a cistern counts as saying so. Walking the field acquires nothing unless what was sold is a path. Sowing, plowing or harvesting acquire, as does the seller handing the buyer a basket of the field's produce. A gentile cannot acquire land by chazakah, only by a deed after payment. What is attached to land is like land, but produce ready for harvest is movable. One chazakah acquires ten fields in ten lands, but only as much as was paid for, and the same applies to rentals. Chapter 2 treats a Canaanite servant like land, acquired by money, deed or by using him as a servant (untying a shoe, carrying things to the bathhouse, dressing the master); merely calling him is not enough, though pushing him close works, and a minor servant is acquired like an animal. Livestock is acquired by meshichah or lifting; meshichah works only in an alley off the public domain or a shared courtyard, and is complete when the animal lifts a forefoot and a hind foot. Handing over the lead animal of a herd is like saying go, pull and acquire. The words you will acquire in the future tense do not effect acquisition; acquire after thirty days does not work, but acquire now and after thirty days does, even if the animal is in a swamp on the thirtieth day. Riding acquires in the field but not in a city, unless the rider is an important person, a person unconcerned with appearances, or a woman, or the animal is in the public domain. Chapter 3 explains that by Torah law money acquires movables, but the Sages required lifting or pulling, so that a seller still holding the goods will save them from fire or theft; if they are destroyed before the buyer takes them, he may demand the goods or his money. Money suffices when the goods are in a place the buyer owns or rents. A load of wood that can be untied must be lifted, a sack of nuts may be pulled, and a ship is acquired by handing it over. Movables are acquired together with land when gathered on it, or anywhere if the seller says to acquire them by virtue of the land; the smallest plot suffices, but not when land goes to one person and movables to another. Servants are not acquired together with land unless standing on it. An animal is a walking courtyard, so pulling it does not acquire its load unless it is tied. The chapter ends with the perforated flowerpot, treated as land, and flax ready for harvest.