Question:
Could you provide me with clear guidelines when we say that a maasei kinyan is “mechazeik devarim” and therefore not a ”kinyan Devorim bialma”? For example, Shut Ritva 117 (partially quoted by BY 333) states that an employment contract is binding because of the kinyan (and we do not say עבדי הם…), whereas the Shach there (14) says that this is a kinyan Devarim bialma.
To quote the Ritva:
:שו”ת הריטב”א סימן קיז
שנשתעבד בקנין לטפויי מילתא אתא שלא יוכל לחזור בו
Answer:
There are two points here.
Firstly, the specific case of the Ritva, a po’el who preformed a kinyan to cimmit himself to work. The Shach disagrees for two reasons, firstly because even after a kinyan the Torah still allows the po’el the right to retaract in the middle of his job becasue “Avodai heim velo avodim le’avodim.” Secondly, the Shach does not regard such a kinyan as the po’el being makneh his guf, but rather as a kinyan to commit to do work – which is a kinyan devorim and is invalid. The Ketzos (333:5) disagrees, arguing that a po’el can actually be makneh his guf to the employer.
(See also Chazon Ish Bava Kamma 21:32,33 that we don’t find a kinyan haguf by a person other than with an Eved Ivri, which anyway doesn’t work nowadays – the Ritva means rather that the po’el is meshabed his nechosim – he has agreed to underwrite the costs of the job, with his own property becoming the guarantee from which the costs will be paid if necessary. In effect, then, the employer is now unable to pull out, because if he does so he will be forced to pay for the completion of the job.)
There is another issue that you refer to.
Sometimes the intention of a kinyan is not to be makneh anything to anyone, but rather an indication that one intends to be serious; the kinyan itself doesn’t effect anything but it demonstrates the commitment and the agreement of the parties to what is being accepted upon themselves. Two examples: Shulchan Aruch Choshen Mishpot 81:17, and Shach CH M 22:4)
