In our everyday commercial dealing, we are unused to paying close attention to the question of the kinyan, the actual halachic “act of acquisition” that transfers the seller’s property to the buyer.
The reason for this is quite simple: under most circumstances, the question of actual ownership of goods is of little relevance. Halachic transfers (kinyanim), which determine the ownership of goods, therefore attract little attention. For example, the question of whose ice cream is being eaten at home—that of the father who bought it, or that of the storeowner—is almost always academic. Even if ownership was never transferred to the buyer, the seller agrees that the buyer should eat the ice cream, and no halachic question therefore arises.
Only under particular circumstances, such as when a doubt arises as to the validity of a sale, does the question of ownership become significant (in determining who is “in holding” of the goods). This element of doubt comes into play to a greater degree in more complicated transactions, such as the sale of property or the sale of companies (and their assets), and far less on a day-to-day level.
Required Halachic Ownership
Yet, there is a set of purchases for which the halachic kinyan we use has clear significance. This is when the object in question is to be used in the performance of mitzvos for which the Torah requires full ownership. This would include the purchase of a wedding ring by a groom (the ring must be owned by the groom), the purchase of tzitzis strings for a talis, and, of course, the purchase of the Four Species for Sukkos—the topic of our article.
The standard kinyan that is employed in everyday purchases is kinyan meshicha: the buyer brings the goods into his ownership by “pulling” them or by raising them in his hand. Because this kinyan is only rabbinic in nature, and there is a matter of doubt over whether a rabbinic kinyan is effective on a de’oraisa level, ((This question is elucidated in the Shulchan Aruch, Even Ha’ezer 28, with regard to the question of kiddushin.)) The Mishna Berura (658:10), in discussing the purchase of the Four Species, states that one should ensure that money is paid in advance for the Species. By making a money payment, one ensures that a full Torah transfer on the Species is made into the buyer’s property, as required by the Torah. The Mishna Berura adds that for this reason, one should avoid buying the Four Species on credit, but rather ensure that money is paid up front.
It is true, as the Mishna Berura himself points out, that another Torah transfer is usually available: the placement of the goods in a person’s domain (such as a person’s home or yard) affects a Torah kinyan, and will also require the Torah’s requirements for ownership. Yet, there are a number of circumstances in which the kinyan of a person’s domain is not a valid option for transferring goods to the buyer’s property. ((For example, an unmarried person, who lives with his parents, a guest in somebody else’s house, and various other circumstances in which a domain is not effective in completing a transfer.)) For this reason, the Mishna Berura stipulates that payment should be made in advance.
Today, there are many different forms of payment available for buyers to choose between. Of course, a buyer might use cash, but he might also use checks and credit cards, the latter being a particularly common form of payment in modern times. When it comes to purchasing the Four Species, it is therefore important to ascertain the halachic status of these forms of payment: are they effective in transferring ownership to the buyer, or are they somehow ineffective in achieving a Torah transfer of property?
Dangers of Late Payments
Before approaching the various forms of payment that a person might use, is it important to emphasize the requirement to pay on time. Of course, the general concept of paying on time is an ethical as well halachic issue. Basic Torah ethics, which obligate us in performing the “just and the good,” require a person to make his payments at the stipulated time. However, in goods that pertain to Torah mitzvos, there is an additional halachic reason for which payments must be made on time.
This reason is the concept of ayil venafik azuzi—a seller who tries to retrieve his money from the buyer, to no avail. As the Shulchan Aruch (Choshen Mishpat 190:10-17) rules, if a seller demonstrates his urgent need for payment by making repeated requests for it, and the buyer does not comply, the seller has the right to void the transaction, and reclaim his goods. The voiding of the sale, which according to some opinions is automatic, applies even to a partial payment withheld by the buyer. ((See commentaries to Shulchan Aruch, ibid. According to some opinions, the entire sale is voided, whereas according to others, only the part of the sale corresponding to the money that had not been paid is voided. With regard to mitzvah items, of course, a partial voiding of the sale is sufficient to invalidate the mitzvah.))
On account of this halacha, the Mishna Berura (11:27) warns of making late payment for tzitzis strings: if the vendor demands payment, and the buyer defers him, the entire sale might be voided. The same warning would apply to purchases of the Four Species. ((However, Rav Shlomo Zalman Auerbach (in his approbation to the Sefer Arbaas Haminim) has noted that the severity of this halachah might not apply to the Four Species. The reason for this is that Yom Tov arrives, it is not in the seller’s best interests to void the transaction, for this would leave him with goods that have already lost their market value—if the sale is voided, the seller will receive back his Species, which lose their value after the commencement of Sukkos. Because voiding the sale is now to the detriment of the seller, we may assume his validation of the sale, and the seller’s continual demand for payment no longer threatens the status of the transaction. However, other authorities have not concurred with this ruling, and it is certainly highly recommended—even more than in everyday purchases—to ensure that payment for the Four Species is made on time.))
The Status of Banknotes
Although we are used to thinking of banknotes as being “money” in the full sense of the word, there is room to question the validity of banknotes in achieving a full kinyan.
The first banknotes were issues by the Bank of England at the end of the seventeenth century, which issue notes in return for deposits, promising to pay the bearer the sum of the note on demand. This meant that the note could be redeemed at the Bank for gold or coinage by anyone presenting it for payment. Although the notes were not initially common—the smallest denomination was set at £50, a full £30 more than the average income at the time—the principle is similar to banknotes of today, and a wealth of halachic material has been written concerning banknotes from that time until today.
The first halachic discussion of banknotes is found in the writings of Rav Meshulam Igra (Choshen Mishpat 16), who lived in the latter half of the eighteenth century. Rav Igra’s basic assertion was that the halachic status of banknotes depends on the significance of the actual note: should the note be burnt, can the bearer still claim back his debt, or not? If the bearer can claim his debt even if the note is no longer extant, this indicates that the note is no more than proof of the debt, possessing no inherent worth. The note would thus be defined as a promissory note, and would not be valid for achieving a Torah kinyan (as will be detailed below).
If, however, loss of the note implies loss of the money, it follows that the note is not merely proof of debt, but possesses actual, inherent value. They are considered gufo mamon (inherent worth), and would be a means valid of enacting a Torah acquisition. After some discussion of this point, Rav Igra concludes that banknotes, whose worth can only be redeemed by presenting the note itself (even testimony of the note’s having been burnt will not allow the bearer to redeem the sum from the bank), are therefore considered as possessing inherent worth.
Several authorities, most notably the Noda Biyhudah (First Edition, Choshen Mishpat no. 37) do not concur with this ruling, and maintain that even transferable debtor’s notes are not considered as possessing inherent worth. However, the Yitav Leiv (Avnei Tzedek, Yoreh De’ah no. 125) points out that the Noda Biyhudah might concede that actual banknotes are considered gufo mamon. The reasoning he employs (which he borrows from his grandfather, Veheishiv Moshe 55) is that the purchasing power of banknotes grants them the status of true money; this opinion has been seconded by the considerable authority of the Shoel U’meishiv (Third Edition, vol. 3, no 55).
In spite of the discussion found among poskim over the Chasam Sofer’s opinion on this matter, ((The Chasam Sofer wrote many responsa on the subject of banknotes. In one of them, he writes that banknotes ought to have the same status as coins, whose value is also at odds with their value as pure metal; see Chasam Sofer, Yoreh De’ah 137, and Choshen Mishpat 187.)) the halachic consensus is certainly that banknotes have the status of true money. Without referring to previous authorities who had written on the issue, the Chazon Ish (Choshen Mishpat 16:2) has expressed this view of banknotes with characteristic succinctness: “Money is defined as that which is universally accepted by society for use in buying and selling and for defining value.”
It is interesting to note that in the Siddur of the Nesivos Hamishpat (Derech Etz Chaim) we find a ruling that banknotes should not be used for the purpose of pidyon haben. Nonetheless, as noted, the halachic consensus is that banknotes have the full status of everyday money, and it is thus perfectly acceptable to use them in the purchase of mitzvah items—including the Four Species.
The Status of Checks
Continuing from the foregoing analysis of banknotes, the transferability of checks has caused a number of halachic authorities to view them in a similar light to banknotes. Like banknotes, the strict definition of a check might be far removed from money—a check is at best a promissory note, declaring the drawer’s debt to the payee, and at best a mere instruction to the bank to pay the bearer the stipulate sum of money. Yet, the Nesivos Shalom (Ribis, 173:55) has cited from Rav Shlomo Zalman Auerbach that checks, by virtue of their transferability, have the full status of cash. ((Naturally, this ruling would depend on the actual transferability of the check. In the Jerusalem society in which Rav Shlomo Zalman lived, a check was easily transferred from hand to hand; in most societies, a check is less transferrable, and most establishments and vendors would not be willing to accept endorsed checks as payment. Under such circumstances, Rav Auerbach would concede that the check is no more than a promissory note.)) In a similar sense, the Mishnah Halachos (vol. 6, no. 122) has written that checks are considered as cash for performing the mitzvah of matanos la’evyonim. ((See also Iggros Moshe, Choshen Mishpat, vol. 2, no. 15.))
However, the simple treatment of a check as though it was cash leads to some thorny problems. Take, for instance, a debtor who wishes to pay back his creditor with a check. At the time he hands over the check, the debtor has sufficient cover in his account, but by the time the creditor cashes in the check there is no longer sufficient cover, and the check bounces. Our natural response to this question, of course, is that the debtor remains obligated to pay—his debts has not been paid back. Yet, if we see a check as being as good as cash, we would reach the conclusion that the creditor has received payment (in “cash”), and the fact that he cannot cash the check into his account would be his loss.
A similarly difficult conclusion would be reached for a case in which the creditor received a check, yet lost it before he could pay it into his bank. Having received the check, which is considered equivalent to cash, we would be forced to conclude that the debt has been paid back, and his loss of the check does not obligate the debtor to pay again.
These conclusions are almost absurd, and they prove that even if check may be considered as cash for certain purposes, their principle status is no more than that of a promissory note. This, indeed, is the prevailing view among modern authorities, who view a check as a shtar chov, a document of debt for all intents and purposes. Thus, in the event that a cheque bounces, the payee would be able to reclaim the payment from the drawer.
A check, it must be noted, does not have the carry the halachic properties that define a promissory note—there is no statement of debt from drawer to payee. Yet, poskim explain that it receives the status of a promissory note either on account of the law of the land (dina de’malchusa), or on account of the common custom which views a check as a bona fide debtor’s note. The first approach is adopted by Rav Elyashiv shlit”a (Kovetz Teshuvos 1:200) and by the Minchas Yitzchak (5:119; 6:170), whereas the second is stated by the Pischei Choshen (Halva’ah chap. 10, note 21) and the Bris Yehuda (chap. 1, note 38).
Assuming the status of a promissory note, it follows that a person’s own check cannot achieve a transfer of property to the buyer (see Shach, Choshen Mishpat 190:1), whereas a third party check is the subject of a dispute among authorities (see Ketzos Hachoshen, 190:1). However, concerning a transferrable third party check, meaning a check that has been endorsed or a check with the payee’s name left open, authorities agree that the check has the power to achieve a full acquisition (this type of document is known as a mamrani; see Pischei Choshen, kinyanim 3:22).
When one has only one’s own checks to use, a possible solution is to ensure that the vendor will cash the check in before Sukkos. The seller’s cashing the check is equivalent to payment, and will ensure that a Torah kinyan has been made on the Species. For an alternative solution, see the end of the section on credit card payments.
Credit cards are a quite different issue. By contrast with cash or check payments, a credit card payment involves no transfer of moneys, or even of debts, between the buyer and the seller. Rather, a swipe of the card establishes an obligation from the credit company to the establishment. After payment, the company collects the money from the buyer.
In this case, moreover, the “custom” of paying with a credit card would not seem to be of any avail. Although it is certainly customary to use credit cards, there is no custom dictating that credit card payments achieve a Torah kinyan. Furthermore, although we find that a custom has the power to achieve a kinyan (this is the concept of situmta, as ruled in the Shulchan Aruch, Choshen Mishpat 201), we do not find that a custom can turn something that is not money into money. Finally, most authorities maintain that the power of the custom is only rabbinic in nature, ((Although the Chasam Sofer (Yoreh De’ah no. 313) writes that situmta constitutes a full Torah kinyan, most authorities maintain that situmta is only a rabbinic kinyan. See [among others]Nesivos Hamishpat 21:1; Rema, responsa 87; Imrei Binah vol. 1, responsa 12). As a rabbinic kinyan, situmta would therefore not be a choice acquisition for objects related to Torah mitzvos.)) so that it would in any event be of little assistance with regard to purchasing the Four Species.
An alternative approach to the purchasing power of credit cards is the mechanism of eved kenaani, one person’s payment (the credit card company) is able to achieve a full kinyan for another party.The Mishpatecha Leyaakov (Vol. 2 no. 13) thus suggests that credit card payments complete the transfer of a purchased item by means of this mechanism.
However, even this mechanism would appear to be flawed, the main problem being that the achievement of concept of a kinyan kesef requires the initial transfer of money to the merchant, either from the purchaser or from somebody paying the money on his behalf. In most credit card transactions, at the time at which the transaction takes place (when the issuer authorizes the transaction) there is no actual transfer of money. The issuer only guarantees that money will be transferred to the merchant at a prearranged time. The mere agreement to transfer money is not sufficient for a valid kinyan kesef to take place.
Because of this problem, and other potential pitfalls even for cases where the issuing bank has transferred payment, credit cards are not a choice means for making Torah acquisitions.
A solution to the problem for cases in which a person wishes (or needs) to use a credit card is to make a partial cash payment, paying the outstanding part with his card. As the Shulchan Aruch (Choshen Mishpat 190:2; see Sema and Taz) stipulates, partial cash payment, which be fairly miniscule (provided it is more than a peruta ((Ten cents is far more than a peruta, which is less even than ten Israeli agurot.)) , is sufficient to achieve a Torah acquisition on the goods in their entirety.
Having acquired the Species, the outstanding sum becomes a regular debt, which can be paid by credit card, by check, or by any other available means. The method of payment has no bearing on the kinyan that has already been completed.
- It is always important to pay for one’s purchases on time. However, with regard to items that require Torah ownership, this requirement takes on further significance, because failure to pay on time is liable to cause the voiding of the sale.
- The best way of purchasing the Four Species (and other items for which full ownership is required) is by means of a cash payment. Banknotes are a valid form of cash payment all intents and purposes.
- A third party, transferrable check is also a valid means of achieving a Torah kinyan. However, the buyer’s own check is not valid for this purpose, and a third party non-transferrable check is subject to a dispute among authorities. When paying with such checks, the buyer should ensure that the merchant cashes in the check before Sukkos, thereby ensuring that a Torah acquisition is made upon the merchant’s receiving the payment. The advice below is also an option for check payments.
- Credit cards are not considered as cash payments, and are not generally suitable for acquiring items that require full ownership. When credit cards are used, the buyer should preferably make a partial cash payment (even a small amount), and pay the remainder with the credit card. This ensures that a Torah acquisition will apply to the entire purchase.
When no other means are available, the buyer should ensure that he achieves a Torah acquisition of the Species by bringing them into his domain (house, yard, and so on).