Question:
Hi,
I learn about kinyanim all the time in shas, but unfortunately, I still have so many unclear points. please help clarify them for me.
(1) S’A (198) says explicitly that money does not acquire because of gezeirah derabanan. But nowadays when somebody goes to the shop – the way he thinks he is acquiring the item is through money and it won’t help that he does a kinyan yad or hagbbaah etc afterwards because he already thinks the item is his from before and therefore has no intention to acquire. (Based off tosfos bava basra 54a). Somebody told me that nowadays money has become like an “accepted way of buying”(situmta) which doesn’t make sense to me- because in their days it was also the norm furthermore the shach (above) says that one cannot even make a tenai that money will acquire. So my question is, at what point does one acquire when one buys something from the shop?
(2) When the Rema(ibid) says that once one does a meshicha it is his even if he hasn’t yet paid – is that always true or could the seller say I only had intention to sell it once you pay me?
(3) Also, if somebody only did meshicha without paying, that would mean it is only his on a derabanan level so if he was to get married with the item would that work? – I didn’t see anyone say that it is dependent on whether a “קנין דרבנן מהני לדאורייתא”. Furthermore, assuming one cannot get married if he just did meshicha- if he paid after the wedding would we say that the ring was his from the time of meshicha? (like a “קנין מעכשיו”). (I saw written, that if someone paid for a ring with a check that was only cashed afterwards that is fine).
Thank-you so much.
Answer:
- Interesting question. Even he wouldn’t technically be acquired it when giving the money, when he brings it into his property, he acquires it (CH”M 300). However even without this, when a person is buys something nowadays, he means to acquire it in whatever way that works, and he doesn’t have intention to specifically acquire it thru kinyan kesef. As a side point, what your friend told is brought in some poskim see (Pischei Choshen -Kinyanim chap2 ftnt. 31)
- If the person didn’t pay, then obviously the sale doesn’t count, as it is clear that the seller never meant to sell it if it won’t be paid for. However if he is going to pay for it, the seller can not say that it isn’t the buyer’s yet because he hasn’t yet paid for it. This is going against the takana of chazal.
- Most mesader kiddushin won’t allow the chosson to be mekadesh this way. Not because it isn’t his, but because the seller might not have daas to be makne it because he isn’t sure he will indeed get his money. This is why if he already gave a post-dated check, it is fine, because he relies on the check that he received, even though he doesn’t yet have cash in the bank.
Best wishes
