When he reached Shechem, the Pasuk tells us that Yaakov bought the land where he erected his tent for one hundred kesita (Bereishis 33:19). In the book of Yehoshua, we are told that the bones of Yosef, which were carried from Egypt by the Israelites, were buried in the same plot of land (24:32).
These passages bring the Shaar Hamelech, a noted commentary on the Rambam, to question the Torah source for kinyan kessef, the acquisition of land by means of payment. Tosafos (Kiddushin 2b; see also Kiddushin 26a) suggests a number of sources for this means of acquisition, yet fails to mention our case of Yaakov Avinu. Why is this so?
The Shaar Hamelech replies that the case of Yaakov Avinu cannot serve as a source for this kind of acquisition, since it only implies that the acquisition by means of payment is effective when the full price of the purchase is paid. In fact, however, the legal transfer of the ownership of property by means of money can be achieved even with a single peruta (the smallest monetary amount).
This cannot be derived from the case of Yaakov, which is why alternative sources must be found.
We take the opportunity to delve into the concept of the kinyan kessef, which is very significant in everyday transactions. For which purposes is a kinyan kessef effective, and where is it ineffective? What means are required to complete a transfer of property where payment is not enough? Is it permitted to withdraw from an agreement to buy something even after payment has been made, in cases where the kinyan is not complete?
These questions, among others, are discussed below.
The Sale of Chattels
For chattels—moveable items, as opposed to real estate—the Mishnah (Kiddushin 26a) teaches that one takes title of the item by moving it (meshicha, literally pulling), and not by payment alone. In the usual situation, where a purchaser gives money to the seller and takes the object from him, the acquisition is only complete when the buyer moves the item.
Rav Yochanan and Reish Lakish (Bava Metzia 46b) disagree over whether this rule is of biblical or rabbinic origin. Rav Yochanan argues that biblically, handing over money is what establishes title, but the Rabbis instituted that one does not acquire the item until meshicha is performed. The reason for this is concern that the seller, if he is no longer the owner, may be lax in looking after the item (at the buyer’s expense).
Reish Lakish, however, asserts that meshicha is sufficient both on a biblical and on a rabbinic level. According to this opinion, the principal method of acquisition of chattels on a Torah level is the buyer’s taking possession, and not giving money. The halachah follows the opinion of Rabbi Yochanan (Rambam, Mechirah 3:5; Shulchan Aruch, Choshen Mishpat 198:1).
In an interesting interpretation, the Chida (Rosh David, Parashas Bo) thus writes that the Torah mandated both forms of acquisition concerning the Pesach offering. On the one hand, the Israelites were instructed to take the Pesach offering (mishchu); on the other, they were also directed to purchase it (kechu), meaning a monetary acquisition.
Purchase from a Non-Jew
A different interpretation of the Torah passage concerning the Pesach offering can relate to the difference in the type of acquisition that applies to Jews and non-Jews.
The Gemara (Bechoros 13a) points out that whatever acquisition is effective on a biblical level between two Jews, the other form is effective for a transaction between a Jew and a non-Jew. According to Rav Yochanan, giving money is the correct form of acquisition between a Jew and another Jew on a Torah level, which implies that moving the item is the valid form for a sale between a Jew and a non-Jew. The reverse is true according to Reish Lakish.
Based on this distinction, we can understand that the Israelites were instructed specifically to move the Pesach offering (rather than just paying for it), because this is the appropriate act of acquisition between a Jew and a non-Jew.
Buying Mitzvah Items with Meshicha
The Machaneh Efraim (Meshicha 2) rules that when a person wishes to purchase a mitzvah item that he must own to fulfill the (Torah) mitzvah—such as the Four Species or Matzah for Pesach—he should not rely on meshicha alone, for it only works on a rabbinic level. Rather, he should be sure to pay for the item before Yom Tov, so that it should be his by means of a Torah-valid acquisition.
Several authorities cite the ruling of the Machaneh Efraim, and recommend that mitzvah items should be paid for in advance of Yom Tov (see Mishnah Berurah 658:10).
The Mishnah Berurah adds that an alternative to payment for the Four Species before Yom Tov is bringing them into the buyer’s home. Once they are brought into the buyer’s legal domain, his property affects a full Torah acquisition on the items. However, some authorities dispute this matter, arguing that bringing an item home is no more effective an acquisition than meshicha (Ketzos Ha-Choshen 198:1).
To fulfill all opinions, it is therefore best to pay for the mitzvah item before Yom Tov.
What happens when a person pays for his mitzvah item, but fails to perform an act of raising them (hagbo’o-the way of performing meshicha on light objects). What is the status of an Esrog that has been purchased with money, where no act of meshicha was performed?
An example of this is where a buyer hands the seller payment, and the seller promises to place the Esrog in a certain place in shul, before the advent of Yom Tov. The seller keeps his promise, and places the Esrog in shul, so that the buyer finds it upon arrival on Yom Tov morning. Under these circumstances, the buyer’s ownership of the Esrog remains incomplete until he takes it into his possession with the intention of making a kinyan.
However, all is not lost. First of all, it seems that in this case, it is permitted to make the necessary acquisition of meshicha on Shabbos. The Mishnah Berurah (323:34) rules that it is permitted to do so on Shabbos, and the same applies for Yom Tov. Although the Magen Avraham (306:15) rules that one must not make a transaction on Shabbos even for a mitzvah, it appears that he will agree that one can make the formal kinyan so as to fulfill the mitzvah.
Moreover, one of the places where the Sages left the purchasing power of money in place is for purposes of a mitzvah. The Gemara (Chullin 83a) explains that on four occasions during the year, when there is a pressing need related to a mitzvah feast, meat can be purchased with money alone, without a need for meshicha.
This halachah is ruled by the Shulchan Aruch (199:3), to which the Rema adds that the same principle applies to the purchase of wine for Kiddush, “for in all such cases the Sages retained Torah law”—meaning that the handover of money alone is sufficient to complete the purchase. The Ketzos Ha-Choshen (199:2) adds that the same applies for somebody who pays a baker for his Shabbos challos: Because this is a mitzvah item required for Shabbos, the purchase is completed with money alone.
It follows that the same will be true concerning the purchase of an Esrog: Since it is a mitzvah item, and required for Yom Tov, the handover of money alone is sufficient, and there is no requirement for meshicha. This is indeed the ruling given by the Mishnah Berurah (Biur Halachah, 656, citing the Peri Megadim).
Thus, when the buyer finds his Esrog in shul, there is no need for him to perform an extra act of meshicha, and the purchase with money is sufficient.
This will also be the reason why in, purchasing an interest in the Shabbos candles (by a guest) the Shulchan Aruch (263:7) recommends giving a coin to the homeowner. Although for other matters the correct acquisition is meshicha, for the mitzvah of Shabbos candles—and the same is true for Chanukah candles—money suffices (see Mishnah Berurah 677:3, and Shemiras Shabbos Kehilchasah 55, note 23).
Does payment with a check effect a kinyan kessef? This question can have many ramifications: Does payment for a house with a check grant the buyer full ownership of the house? May mitzvah items, for which (as noted above) one should strive for Torah ownership, be paid for with a check?
The formal definition of a check is at best a promissory note, declaring the drawer’s debt to the payee. It might also be defined as an instruction to the bank to pay the bearer the stipulated sum of money.
Yet, Nesivos Shalom (Ribis 173:55) cites Rav Shlomo Zalman Auerbach that checks, by virtue of their transferability, have the status of a cash payment. Naturally, this depends on the actual transferability of a check. In the Jerusalem society where Rav Shlomo Zalman lived, a check was easily transferred from hand to hand; in most societies today, a check is less transferable, so that all might concede that a check is no more than a promissory note.
Moreover, treating a check as cash raises some real difficulties. 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 funds in his account, but by the time the creditor cashes it in there is no longer sufficient cover, and the check bounces. Our natural response will be that the debtor remains obligated to pay. Yet, if we see a check as being as good as cash, we might reach the conclusion that the creditor has received payment, and the fact that he cannot cash the check into his account is his own loss.
A similarly difficult conclusion can be reached in 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 like cash, we might conclude that the debt has been paid back, and his loss of the check does not obligate the debtor to pay again just as when he was paid in currency and subsequently lost them.
These conclusions are almost absurd, and they prove that even if checks are considered as cash for certain purposes, their principle status is that of a promissory note. This is also the prevailing view among modern authorities, who view a check as a shtar chov, a document of debt for all intents and purposes (see Kovetz Teshuvos 1:200; Shut Minchas Yitzchak 5:119, 6:170; Pischei Choshen, Halvaah chap. 10, note 21; Bris Yehuda chap. 1, note 38). In the event of a check that bounces, the payee can therefore claim payment from the drawer.
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 transferable third party check (which has been endorsed by the payee) 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).
For the purpose of a mitzvah purchase such as an Esrog, where one has only his own checks to use, a possible solution is to ensure that the vendor will cash the check before Sukkos. Cashing the check is equivalent to payment, and will ensure that a Torah kinyan has been made. Alternatively, a partial payment can be made in cash, with the remainder paid with the check.
Backing Out of a Deal
Although the Sages annulled the purchasing power of money regarding chattels, this does not mean that it is permitted to back out of a transaction even after money has been transferred. Concerning this situation the Gemara (Bava Metzia 49a) states that after a buyer has paid for the goods, a mi shepara curse is declared on whichever party withdraws from the deal.
Beis Din thus declares upon the withdrawing party: “He who took retribution from the generation of the flood, the generation of the division (Babel), from the people of Sedom and Amora and from Mitzrayim upon the sea—He is destined to take retribution from one who does not keep his word!” This is ruled by the Shulchan Aruch (Choshen Mishpat 204:4), and the Rema adds that some perform the ceremony in public.
Clearly, it is therefore prohibited to withdraw from a sale agreement after money has been paid—though if one of the parties does withdraw before the buyer takes hold of the goods, the withdrawal is effective. Note that even when money was not transferred, if an item was explicitly reserved for the buyer by means of stamping it or otherwise designating it for his purchase, the same stringency of mi shepara applies (Semah 204:4).
Naturally, for complex cases the advice of a competent halachic authority should be sought.