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Acquisition

ACQUISITION

ACQUISITION (Heb. קִנְיָן; kinyan ) the act whereby a person voluntarily obtains legal rights. In Jewish law almost all kinds of rights, whether proprietary (jus in rem) or contractual (jus in personam; see *Obligations), can be voluntarily acquired only by way of kinyan. Acquisition of rights by way of kinyan can be divided into three groups:

(1) Acquiring ownership over ownerless property (hefker) such as animals, fish in river or ocean, and lost property which the owner has abandoned hope of finding; (2) rights over property which has an owner, acquisition being by way of sale or gift. Acquisition of ownerless property (original acquisition) is called in the Talmud, ein da'at aḥeret maknah (literally "when no other mind conveys title") and acquisition from a previous owner (derivative acquisition) is called da'at aḥeret maknah ("another mind conveys title"). In this latter group are also included lesser rights than ownership (jura in re aliena) such as a lease or an easement; (3) contractual or personal rights such as debts, or the hiring of workmen, the acquisition of which also depends upon "another mind conveying the right."

In the case of original acquisition the formalities of acquiring title are to demonstrate that the property is in unrestricted possession of the person acquiring it, meaning that he has the ability and intent to use it whenever he wishes to do so, which includes the power to prevent others from interfering with that use. The halakhah enumerates, according to objective tests, the acts by which people would usually recognize that the property is in the possession of the acquirer. Consequently, the list of recognized forms of original acquisition is a closed one.

With regard to derivative acquisition, however, the function of kinyan is not to demonstrate that it has passed into the possession of the person acquiring it, but that the alienator and the acquirer had determined to conclude the transaction. In fact, the party acquiring title performs the kinyan, and the alienator expresses his approval orally. The sole reason for a formal kinyan is that a mere oral agreement may not be taken seriously and might enable the parties to withdraw from the proposed transaction. For this reason derivative acquisition can be effected in a greater variety of ways than original acquisition; when the parties derive mutual benefit from the transaction showing that they have wholeheartedly reached an agreement to conclude it, no formal kinyan is even required (R. Johanan, bm 94a). For the same reason an acquisition is valid if done in a mode customary among local merchants even though different from the talmudic kinyanim (Sh. Ar., Ḥm 201:2). Since in the case of derivative acquisition the kinyan serves not to show possession but to indicate that the parties made up their minds to conclude the transaction, it can also be used for creation of contractual rights, such as a duty to sell something which is not yet in existence (davar she-lo ba la-olam) – even though one cannot effect transfer of a non-existent object (see *Assignment; Sh. Ar., Ḥm 60:6). The acquisition of rights requires "intention" on the part of the acquirer. The statement in the Talmud (bm 11a) that "a person's premises acquire for him without his knowledge" (see below) must therefore be taken to refer to the acquisition of such an object as the owner of the premises would have desired to acquire had he known of its presence there, and it must, by the same token, be property which is usually found there (Tos. to bb 54a).

There are general modes of kinyan which apply to both original and derivative acquisition, and others which apply only to derivative acquisition by way of sale and gift. Under the first class come:

(1) Kinyan Ḥaẓer

("Acquisition through one's courtyard"). A person's premises "acquire" for him such movable property as comes into it. Since, as stated, the property must be within his possession and control, such premises, in order to "acquire" on his behalf, must be fenced in, or "he stands at the side thereof" guarding what is in it (bm 11a), or that others keep away from the premises for any other reason (ibid. 102a). Consequently a shopkeeper does not acquire property lost in his shop, if it is in a place to which customers have access, but only if it is in a place to which he alone has access (Maim. Yad, Gezelah, 16:4). Nor does a person acquire anything in premises to which the public has access (Novellae Rashba to bm 25b). Similarly, a man's premises do not acquire fledglings because they can fly away (bm 11a) or chattels which may be blown away (Git. 79a). Similarly, treasure hidden in the ground, even of guarded premises, belongs to the finder (bm 25b) and not to the owner of the ground because the owner is not likely to find it because it is hidden, and therefore he has no control of it. The ḥaẓer need not necessarily be immovable property; the same rule applied to utensils if their owner had the right to leave them in a certain place where they would not be removed (bb 85a). It follows that a person's animal cannot acquire for him since it is a "moving courtyard" (Git. 21a) and may wander beyond its owner's care, On the other hand, a boat would "acquire" for its owner fish which leap into it (bm 9b) since it is property guarded by its owner. With regard to derivative acquisition, since there is no need to demonstrate that the property is in the possession of its acquirer, even an unguarded ḥaẓer can acquire according to one opinion (bm 11b).

(2) Arba Ammot

("Four cubits"). The area round a person having a radius of four cubits is regarded as having the same properties as a ḥaẓer, providing that he is in a place where he has control over the article (bm 10b). There seems to be a difference between the Babylonian and the Jerusalem Talmuds with regard to kinyan by arba ammot. According to the former it acquires even without an express formula on the individual's part, unless he has clearly stated or indicated that he does not wish to acquire and the Talmud refers to it as applying only to original acquisitions. The Jerusalem Talmud, on the other hand, requires an express declaration on his part that his arba ammot shall acquire the article for him (Elijah of Vilna to tj, Pe'ah 4:2) and makes this rule apply also to derivative acquisition. Opinions differ as to the capacity of minors to acquire by kinyan ḥaẓer or arba ammot (bm 11a).

(3) Hagbahah ("lifting"), Meshikhah ("pulling") and Mesirah ("transfer")

Movable objects are acquired by hagbahah in the case of articles which can be lifted without difficulty; where they are too heavy, or can be raised only with difficulty, meshikhah takes its place (bb 86a). Both serve to demonstrate that the article thereby comes into the acquirer's possession, and is guarded for him as in his ḥaẓer. The article may be raised merely by the force of his body (Tos. to bk 98a). There is a difference of opinion as to whether it must be lifted one handsbreadth or three (Tos. to Kid., 26a). Meshikhah, applying to an animal, can be effected by striking or calling it so that it comes to one (bb 75a) or by leading or riding it (bm 8b). The prevailing opinion is that meshikhah applies only in premises owned by both parties or in a side street (bb 76b), but not in a public place. According to one opinion, however, it is effective in a public thoroughfare as well (tj, Kid. 1:4, Tos. to bk 79a). The above-mentioned methods of kinyan apply both to original and derivative acquisition, but in cases of derivative acquisition the express permission of the alienator to the acquirer to perform kinyan is an indispensable element in the kinyan (bk 52a; bb 53a). These methods of kinyan apply also to personal obligations, such as those of a bailee (Tos. to bk 79a) or an artisan for his work (bm 48a; see *Labor Law). Mesirah consists of grasping at the object to be acquired (bb 75b) and the term mesirah indicates that it is done at the behest of the transferor (Tos. to ibid.) Since it does not demonstrate intention to control the subject matter which is a necessary element of possession, it applies only to derivative acquisition. It is employed where meshikhah is ineffective, i.e., in a public place or in an ḥaẓer not belonging to either party.

(4) Ḥazakah

Whereas all the foregoing modes of acquisition apply to movables only, in the case of immovable property acquisition is by an act of ḥazakah (Kid. 26a) which consists of any act usually done by an owner, such as fencing, opening a gateway or locking the premises (bb 42a), or weeding or hoeing (ibid., 54a), or putting down a mattress to sleep there (ibid., 53b). In general, any improvement of the land is regarded as an act usually done by the owner (Maim. Yad, Mekhirah, 1:8). Such an act as preventing floodwaters from inundating a field, however, would not constitute a ḥazakah as it could be regarded simply as a voluntary neighborly act (bb 53a). There is a difference of opinion as to whether merely traversing the land is acquiring as it constitutes an act usually done by the owner (bb 100a). With regard to a sale or gift, the land acquired by the ḥazakah includes everything stipulated by the parties (Sh. Ar, Ḥm 192:12); with regard to ownerless property, it includes only such part as is patently seen to be in his possession (ibid. 275:3–9). As with meshikhah, in the case of derivative acquisition the alienator must specifically instruct the acquirer to take possession, or otherwise indicate his consent (bk 52a; bb 53a). There are forms of acquisition by ḥazakah which apply either to original or to derivative acquisition, but not to both (Sh. Ar., Ḥm 275:12–13). (For the ḥazakah established by three years' possession which is a method of proof and does not come within the category of kinyan, see *Ḥazakah).

The following methods of kinyan apply to derivative acquisitions only because they do not demonstrate possession but rather the intention of the parties to conclude the transaction:

(5) Kinyan Kesef

("Acquisition by money"). The transfer by the purchaser to the seller of the agreed monetary price of the article. R. Johanan is of the view that in strict law this mode of kinyan applies both to movables and immovables, and with regard to derivative acquisition the kinyan was done by paying money only and not by hagbahaḥ and meshikhah. But it was enacted that instead of paying money meshikhah should be necessary, since if the object remains in the possession of the transferor he may not guard it against being destroyed by fire or other dangers (bm 47a). Similarly, the need for a deed (shetar) was added in the case of immovables (Kid. 26a). The Jerusalem Talmud (Kid. 1:5) indicates other modes of kinyan with regard to immovables, one based on the removal of a shoe as mentioned in Ruth 4:7, and the other being *keẓaẓah, without any indication of the period when those modes were practiced. But kesef, shetar, and ḥazakah alone remained. However, even though, since tannaitic times, neither movables nor immovables were acquired solely by kinyan kesef, the sale of immovables was not regarded as completed until the money had passed, though it could be paid to a third party according to the seller's instructions (Kid. 7a). Where only part of the purchase money is paid, the balance being postponed by the transferor in the form of a loan, even if only implicitly and without the loan being expressly stated, the part payment concludes the transaction, unless it is clear from the conduct of the transferor that this part payment did not complete the transaction, even if kinyan took place (bm 77b). Kinyan kesef is already mentioned in the Bible (Gen. 23; Jer. 32:6–15).

(6) Kinyan Shetar

("Acquisition by deed"). In kinyan shetar the deed is not just evidence of the act of acquisition but constitutes the act of acquisition itself (shetar kinyan, Sh. Ar., Ḥm 191:2). The vendor writes on paper or other material "my field is given (or sold) to you" and the receipt of that deed by the purchaser establishes his title even in the absence of witnesses (ibid., l). Movables cannot be acquired by shetar. Kinyan shetar is already mentioned in the Bible (Jer. 32).

(7) Ḥalifin ("barter"), Kinyan Sudar ("Kinyan of the Kerchief")

The exchange of property is as effective as the payment of money in establishing acquisition, even if the two objects exchanged are not of equal value. Thus, if the alienator draws to him an article owned by the acquirer the transaction is affected. Ḥalifin cannot however be effected by current coinage since this would constitute kinyan kesef, which depends upon the monetary value (see bm 45b). Out of this there developed the act of acquisition called kinyan sudar, which is therefore also called kinyan ḥalifin (Kid, 6b; et al.). The kerchief (sudar) is merely pulled by the acquirer and can then be returned to the owner (ibid., Ned. 48b). This mode of acquisition being very easy to perform in all kinds of situations, it became so prevalent that it is referred to simply as kinyan (cf. Git. 14a;bm 94a; bb 3a). The origin of kinyan sudar may be traced to Ruth 4:7. Throughout the tannaitic period it is never expressly mentioned. It is first mentioned at the beginning of the amoraic period in the dispute as to whether, as in the case of barter proper, the sudar must belong to the acquirer, or to the alienator (bm 47a); the former view prevailed. Apparently, because of the simplicity of this mode of acquisition, this kinyan is not regarded as completed even after the ceremony, as long as the parties are still talking about the deal (bb 114a).

(8) Aggav Karka

("The acquisition of movables incidental to land.") Movables may be acquired as an adjunct to land, the act of kinyan being performed only with regard to the land (Kid. 26a). It probably originated in the acquisition of a courtyard with everything contained therein (cf. Tosef., bb 2:13) or similar cases as field, olive press, etc. subsequently being extended to apply to everything belonging to them (cf. bb 78a), even if not actually there at the time of the transaction, and finally to all movables of unlimited amount being sold incidentally to any immovable property, even if they do not have any connection whatever with it (Kid. 26b). Thus the movables did not have to be assembled (ibid. 26a–b) except in the case of slaves (bk 12a). The final development was to acquire movables as an adjunct to an unspecified piece of land (Sh. Ar., Ḥm 202:7 gloss) and the land could be acquired by sale and the movables as a gift, and conversely. As a facile mode of acquiring movables, not necessitating the presence of the parties on the site, it was in operation for long periods, In the geonic period the "four cubits in Ereẓ Israel" which every Jew theoretically owns, was made the basis of a practice whereby an agent could be appointed to recover a deposit or a debt, aggav karka, of these four cubits (Maim. Yad, Sheluḥin, 3:7).

(9) Usage and Custom

Generally speaking, any custom adopted by the local merchants as a mode of acquisition is valid according to Jewish law (Sh. Ar., Ḥm 201:2), since it fulfills the principle that the purpose of the kinyan is to bring about the decision of the parties to conclude the transaction. Conversely, when a once accepted mode of acquisition fell into desuetude it could no longer be employed (cf. C. Albeck, Shishah Sidrei Mishnah, Seder Nashim (1958), 410–12; addenda to Kid. 1:4–5). The Babylonian Talmud mentions the custom of wine-merchants marking the barrels they had purchased (bm 74a), and in post-talmudic times three such customs prevalent among Christians were adopted since they fulfilled the same function as "affixing a mark" (Sh. Ar., Ḥm 201:2). They are (a) the handshake (Teki'at kaf) mentioned in Proverbs 6:1 as a form of giving surety (Piskei ha-Rosh, bm 74a in the name of "R.H.," probably the tosafist Ḥayyim Cohen and not R. Hananel, who expressed a contrary view; see Or Zaru'a, bm 231). Some authorities even regarded a handshake as the equivalent of an oath (Mordekhai to Shevu. 757) but others regarded it as an act of acquisition (for the parallel among Christians see Palmata, Handschlag); (b) the handing over of a coin by the purchaser to the vendor, which was originally a medieval Christian custom (Arrha, earnest money); and (c) handing over a key – the vendor hands to the purchaser the key of the premises where the merchandise is housed. Handing over a key is mentioned in the Babylonian Talmud (bk 52a; Tos. to ibid.), but only as the authorization by the alienator for the acquirer to make the kinyan ḥazakah and in the Jerusalem Talmud as a mode of derivative acquisition of the building (Mareh ha-Panim to Kid. 1:4). As a mode of acquiring movables it was a Christian custom (Traditio clavium; see B. Cohen, Jewish and Roman Law, 2 (1966), 538–56), Present day rabbinical courts have applied the principle of regarding local custom as valid; thus the transfer of immovable property through registration in the Land Registry is a valid kinyan in Jewish Law (pdr, 1:283).

(10) Acquisition with No Formal Act

Where it is clear that the parties concerned decide a transaction to their mutual benefit and satisfaction a formal kinyan is not essential (see Ket. 102b; Git. 14a; bm 94a; bb 176b; cf. Maim. Yad, Mekhirah, 5:11). This rule obtains generally with regard to personal obligations but can include rights in rem (see bb 106b and Haggahot ha-Rashash on Tos. Bek. 18b). This principle was extended in the post-talmudic period (Hai Gaon, in Ḥemdah Genuzah, no. 135; responsa Meir of Rothenburg, ed. Prague, 941; responsa Ribash 476; Sh. Ar., Ḥm 176:4). For other modes of acquisition see *Admission, *Assignment, *Confiscation and Expropriation, *Hefker, *Hekdesh, *Succession, *Theft, and Robbery.

In the state of Israel, sale is governed by the Law of Sale, 1968, based on the uniform international draft (Hague, 1964); gift is governed by the Law of Gift, 1968; and the acquisition of immovables by the Land Law, 1969. Ownership, in the case of sale, passes by way of offer and acceptance and, in case of gift, by delivery of the property. Transfer of title to land becomes valid only on registration in the Land Registry. Contractual obligations are created by agreement between the parties in any manner whatever. Legislation vests ownership of all unowned property in the state, which cannot therefore be originally acquired.

[Shalom Albeck]

Legal Acts Which Do Not Require a Kinyan

Further to the above discussion regarding the requirement of a kinyan in order to give force to a legal act, it should be noted that as of the 13th century, we find the legal principle that any legal transaction undertaken by the public is valid even in the absence of a formal kinyan, "Any thing that is done by the public does not require a kinyan, [even] in a situation in which an individual would require a kinyan" (Responsa Maharam of Rothenburg, cited in Mordekhai, Bava Meẓia, #457–458). This new principle was applied to various categories of legal transactions, such as employer-employee relations, guarantees and gifts, and other legal matters to which the public is a party (see Responsa Maharam b. Reb Barukh (Prague), 38; Responsa Ribash, §476; Sh. Ar., Ḥm 163. 6 (Rema); 204.9; Responsa Mayim Amukkim; Responsa Ra'anah – Rabbi Eliahu b. Rabbi Hayyim, §63). The established and accepted rule was that "whatever the leaders of the community agree to do has validity without a kinyan" (Responsa Rosh, Kelal 6.19, 21). This distinction between the kinyan of an individual and the kinyan of the public or its representatives also affected the application of other basic requirements normally applying to the kinyan. Thus, a public authority has full authority to acquire or transfer something not yet in existence; despite the general rule of Jewish law that "asmakhta does not convey title" (see *Asmakhta), the acts of a public authority are valid even where performed by way of asmakhta (Responsa Mayim Amukim, op cit.; Responsa Mabit 3. 228; see *Contract, Law of Obligations").

The above-cited sources served as a basis for the Supreme Court's ruling, given by Justice Elon, regarding the heightened requirement of good faith imposed on the public authority in its actions performed within the realm of the law (hc 376/81, Lugassi v. Minister of Communications, 36 (2) pd 449). Additional sources are cited further on in the decision (pp. 465–471; see *Public Authority and Administrative Law).

An additional category in which there is no need for a kinyan in order to give force to a legal act is the area of wills (see *Succession). Generally speaking, a will must be accompanied by a kinyan in order to prove the finality of the decision and to give it legal force. However, in the case of a will made on a deathbed (the will of a shekhiv me-ra) – that is, one made by a person who is ill and in danger of dying, or a healthy person in a situation causing him to regard himself as facing death – the will is valid even without a kinyan, because we assume that, due to the unique circumstances involved in its making, it was performed as a final decision (Maimonides, Yad, Zekhiyah u-matanah 8.2, 4, 24, 26.)

In an Israeli Supreme Court decision in the Koenig case (fh 80/40 Koenig v. Cohen, 36(3) pd 701), Justice Menahem Elon held that this halakhic rule should determine the interpretation of Section 23 of the Succession Law, 5725–1964. Section 23 utilizes the Talmudic term "shekhiv me-ra" (Lit: moribund] in referring to a person making a will when on the point of death:

A person who is a shekhiv me-ra or who under the circumstances reasonably regards himself as facing death may make an oral will before two witnesses who understand his language.

Justice Elon ruled that Section 23's use of the Talmudic term shekhiv me-ra indicates the origin of the law in the Jewish law regarding a deathbed will, and hence the applicability of the Jewish Law regarding the deathbed will (= ẓava'at shekhiv me-ra). The decision in the Koenig case dealt with a case in which a woman left a will made on a piece of paper without a date and signature just before she killed herself. The justices disagreed regarding the legal validity of the will, and Justice Elon contended that the will should be seen as a deathbed will and hence should be considered valid, notwithstanding its deficiencies and flaws (ibid, pp. 733–38.)

Alternative Explanation of the Essence of Kinyan Sudar

According to another view, kinyan sudar is not a derivative of kinyan halifin (barter), i.e., the exchange of property, but derives rather from the institution of surety (see *Suretyship). The transaction takes effect when the conveyor of title, or the obligatee, undertakes to bind himself (meshabed nafsho) (bm 47a). In other words: he places himself in the "position" of a purchaser, conveyor of title, debtor, worker, etc., in accordance with the legal action for purpose of which kinyan sudar is performed.

[Menachem Elon (2nd ed.)]

bibliography:

Maim. Yad, Mekhirah, 1–9; Sh. Ar., Ḥm 189–203; Gulak, Yesodei, 1 (1922), 102–27; 2 (1922), 32–57; Gulak, Le-Ḥeker Toledot ha-Mishpat ha-Ivri, 1 (1929), (41–86); Herzog, Instit, 1 (1936), 137–200; S. Albeck, Sinai, 62 (1967/68), 229–61; et. s.v.Aggav. Arba Ammot, Da'at Aḥeret Maknah, Hagbahah, Hitḥayyevut. add. bibliography: Maimonides, Yad, Mekhirah, 1–9; Sh. Ar., Ḥm 189–203; Gulak, Yesodei, 1 (1922), 102–27; 2 (1922), 32–57; Gulak, Le-Ḥeker Toledot ha-Mishpat ha-Ivri, 1 (1929), 41–86; Herzog, Institutions, 1 (1936), 137–200; S. Albeck, in: Sinai, 62 (1967/68), 229–61; M. Elon, Ha-Mishpat ha-Ivri (1988), 1:101–2, 196, 476–482, 516, 533f, 741f; 2:835–7; idem, Jewish Law (1994), 1:113–4, 220–1; 2:580–5,628–29,649f, 913f; 3:1022–24; B. Lifshitz, Mishpat u-Pe'ulah (2002); M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 2:425–40; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 291–98; B. Lifshitz, Obligation and Acquisition in Jewish Law (1988); I. Warhaftig, Ha-Hitḥayvut (2001), 375–83.

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