Halachos of Kinyanim

THE FOUR LEVELS OF COMMITMENT

There are four basic levels of commitment, each with its own set of rules. The first stage is when someone decides in his mind to accept an offer to buy or sell an item. The second stage is a verbal agreement. The third is when the buyer presents payment to the seller. The fourth and final step is when a kinyan is made.

The following is a brief outline of each step, all of which will be explained in more detail.

1. Dover Emes Bilvavo: When a seller comes to the decision in his mind to accept an offer and sell an item, even though he has not said anything and no one else knows he has made this decision, he still has already accepted some form of commitment. This falls under the verse that states, “dover emes b’livavo”, one should speak truth in his heart. Chazal discern from this verse that if one reached a decision in his heart, he should not change course; rather, he should follow through with his commitment and not retract.

2. Devarim: A verbal agreement is not enforceable in bais din, and both sides can back out with no tangible recourse or remedy; however, that does not mean that it is permitted. In fact, the Shulchan Aruch says (in Siman 204) that it is forbidden to back out after reaching a verbal agreement. One who reneges on such a commitment is described as a “mechusar amanah”, an untrustworthy person, which is clearly, a very unfavorable title for anyone to have.

3. Kesef: If someone is buying land or real estate, the remittance of payment can constitute a kinyan that finalizes the transaction, barring other circumstances. However, if one is buying a movable object, Chazal specifically enacted that paying money is not a final kinyan, and the transaction is not concluded until an act of acquisition is made on the actual item. Instead, they designated a specific curse known as “mi shepara”, which would be placed upon the reneging party. The reason for this enactment, and it’s limitations, will be discussed at length.

4. Kinyan: The final stage of the transaction is the actual kinyan. Once the act of the kinyan has been made, ownership has been transferred completely. There are many different types of kinyanim recognized by Chazal, as well as others that have become kinyanim due to common practice. These common-practice kinyanim are perhaps the most relevant in today’s world of commerce, wherein formal kinyanim are often impractical.

EXCEPTIONS TO THE RULE

It must be noted that there are several cases where a physical act of kinyan is not required for a transaction to be finalized. Some of these will be discussed within the segment.