Halacha and the Common Law Part 2: Contracts and Kinyan

By Aaron Lang: Relations and obligations between parties in the common law are regulated by contracts, which amount to legally enforceable promises. Halacha regulates relations and obligations with kinyan, an act (ma’asa) of taking title, possession or custody, or encumbering a person or his property. Kinyan makes agreements enforceable, not because parties are held to mere words, but because a ma’asa effected a change in ownership or encumbrance. For example, a tradesman is bound to the specific performance of completing his task if he allows his employer to make a kinyan on his tools for the completion of the job.1 The kinyan makes the future davar sh’lo ba l’olam product belong to the employer (like dekel l’pay’ros).2

This analytical rigor defining ownership and status distinguishes halacha from the common law in many ways such as in the routine probate of testamentary wills. The decedent does not own property when he is no longer alive and cannot affect its disposition. His property does not become ownerless, but immediately belongs to the intestate heirs. A testator has to allow for a kinyan on his property while he is still alive to give his testamentary distributes title before it descends to the intestate estate. Perhaps this distinction is less pronounced with the proliferation of non-probate property and the required designation of beneficiary distribution.3

A marriage takes effect through kinyan. The kinyan of marriage, the ma’asa of giving the ring or something of value to the bride, effects a change in the parties. The parties are redefined through the kinyan into married parties, more profoundly bound than parties to a vow or contract. Contracts are normally subject to intent and waiver, a weak theoretic basis for this venerable institution. Moreover, third parties are not bound by contracts to which they are not party. By contrast, the kinyan of marriage changes an eisha so that she is redefined as an aishes eish to the world, binding the liability of all third parties to her acquired status.4 Consent or waiver by the husband, wife or both, are irrelevant. The kinyan of divorce restores the original status of the parties.

An object does not become stolen without a kinyan. A thief is not liable until he does a ma’asa picking up or dragging property into his own possession without consent. Otherwise the property remains in the possession of the owner and the thief does not assume the risk of loss. If the thief merely prevents the owner from exercising control but does not physically take possession, he did not make a kinyan.

A promise to sell or to make a gift is not enforceable in halacha.5 Without kinyan transferring title to the object, a mere promise is unenforceable, even if the promisor made a kinyan to encumber the object for the future sale. An object can secure payment of a debt as long as the debt exists separate from the promise of sale or gift, but not to secure its own future sale or gift.6 By contrast, Common Law Courts, enforce promises to sell. Courts of Chancery have even developed the doctrine of equitable conversion, so that a home is sold before title has changed. The party promising to buy assumes the risk of fire and destruction of the property in most states, including New Jersey7, even while the seller is still in possession before closing. This is perplexing. A party promising to sell under contract has only promised to sell, has not sold, and equity forces the buyer to assume the risk while leaving the owner in possession. Compare to halacha, where a buyer tendering monetary payment for personal goods makes a kinyan according biblical law, but does not complete the acquisition by rabbinic law until delivery, because risk is better allocated to the seller as long as he remains in possession.8

Halacha and the Common Law-Part One can be found here:

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Endnotes:

1. 333 Choshen Mishpat 1.

2. See Rashba Kesuvos 59b: The kinyan on the tangible for the future davar sh’lo ba l’olam product is effective “even though it does not actually come out of the tangible like dekel l’pay’ros as long as the tangible is sufficiently involved in its production. . .”

3. See 252 Choshen Mishpat 2.

4. See Kiddushin 65b: The kinyan of kiddushin needs independent witnesses because it is chayiv l’acharini, binding upon third parties.

5. 245 Choshet Mishpat 1.

6. See 10 Rosh on Kiddushin 8b.

7. Marion v. Walcott, 68 N.J. 20 (Ch. 1904, buyer assumes risk when contract to buy is signed).

8. Baba Metziah 47b.

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4 COMMENTS

  1. I was surprised to find no mention of either minhag hasocharim or situmtta, which establish mechanisms for entering binding transactions despite the lack of a formal kinyan. While the idea is mentioned only briefly in the Talmud, it becomes substantially more important over time, such that it is rare to find a case where a commercially significant transaction is invalidated for want of kinyan formalities. Likewise, whereas in the Talmud the idea of asmachta would seem to bar many remedies of modern contract law, the history of how asmachta transitions from a term mandated in every contract (in the Talmud) to a term that can be contracted around (in the early rishonim), to a term the law presumes has been contracted around (latter rishonim/achronim) is surely relevant to the article’s thesis.

  2. Situmta does not make kinyan d’varim. It can make kinyan on something that is capable of kinyan (some hold it works on davar sh’lo ba l’olam). It cannot make a kinyan on words or on something that has no mamashos (212 Choshen Mishpat 1, see Pischae T’shuva 2). Any answer has to fit into the kinyan or g’miras daas framework.

    The point of the article is the theoretical foundation. Duty and liability in halacha are guided by the ma’asa. The common law looks toward social policy, measuring prudence with respect to consequences. Halacha, by contrast, is an intrinsically moral system of law, evaluating the universal act, maintaining exacting logical consistency in defining relationships between people and their property. (Interesting that historians ascribe the dissemination of that which we call morality to ancient Israel.)

  3. According to the doctrine of equitable conversion can we say dina dmalchusa dina? Or to make the sale of land contract into a shtar kinyan on the Karka?

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