Wednesday, December 30, 2009

Retracting a Kinyan

Rabbah and Rav Yosef argue about when a kinyan may be retracted. Rabbah rules that a kinyan may be retracted as long as the parties are still sitting. Rav Yosef rules that a kinyan may be retracted as long as the parties are still discussing the transaction.

What type of kinyan are Rabbah and Rav Yosef discussing? The CHIDUSHEI HA’RAN quotes an opinion that explains that the Gemora refers only to a matnas shechiv mei’ra (the gift of a deathly ill person), because a sick person is likely to retract his words as long as they are talking about the topic of his estate. In contrast, in the case of a matnas bari (the gift of a healthy person), the person may retract his words only “toch ke’dei dibbur” – (within the time of an utterance).

The RASHBAM (D”H Hachi Garsinan) explains that the Gemora clearly refers to the type of kinyan which the Gemora discussed previously, a matnas bari or a matnas shechiv mei’ra. The Ran quotes this opinion in the name of most of the Rishonim, including the RAMBAM and RAMBAN. The Rashbam explains that one certainly may retract the kinyan as long as the parties are still discussing the conditions of the transaction (the gift). The Chachamim understood that a person does not finalize the gift until he is satisfied with all of the conditions which he stipulates.

Does this reasoning apply to other forms of kinyanim? The ROSH (#5) writes that the Chachamim gave time for the parties to consider the conditions of the transaction only in the case of a kinyan chalifin (which is often used to finalize a matanah). However, “in other kinyanim, such as where the person picks up, pulls, or gives over an object... a person cannot retract the kinyan after ke’dei dibbur.” The Rosh clearly says that although there is no extended time period in which one may retract in the case of other kinyanim, one may retract any kinyan within the time of “toch ke’dei dibbur.”

RABEINU YONAH initially agrees with the Rosh, but then he says that one can argue that when one takes possession of an object (movable objects) through meshichah or one takes possession of land through chazakah, the kinyan is finalized with the action of the kinyan, and it cannot be retracted even within “toch ke’dei dibbur.”

Why, though, should meshichah and chazakah differ from all other forms of kinyan? RAV GERSHON EIDELSTEIN shlit’a writes that Rabeinu Yonah clearly understands that the degree of finality of an act of kinyan in the mind of the person depends on the specific type of kinyan. For example, when the Gemora in Nedarim (87a) states that acts of kidushin and gerushin cannot be retracted even within “toch ke’dei dibbur,” it is because the acts of kidushin and gerushin are so serious that a person deems them final at the moment he performs the act. Similarly, when one performs an act of meshichah or chazakah, such an act may be considered more final and conclusive than other forms of kinyanim.
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