Sunday, January 31, 2010

Kinyan Kesef

The Mishna had stated: If a man verbally divides his property among his inheritors, Rabbi Elozar says that whether he is healthy or dangerously ill (he is required to make a formal kinyan to transfer his property), real property (land) can be transferred only by money payment, by document, or by an act of possession (chazakah; displaying ownership), and movable property may be transferred only by pulling (a kinyan meshichah).

This would be a proof that one may give a gift through a kinyan of money, for the words of a shechiv mei’ra are merely a gift, and yet, Rabbi Eliezer said that he may transfer property through a kinyan of money.

The Netziv points this out in his He’emek Shailah. However, he cites a She’iltos that omits the kinyan of money. The She’iltos writes that his transfer of property can be accomplished through a chazakah (propriety act), a document or chalifin (exchange), but there is no mention of money. It would seem that the Tur also holds like this.

This would be dependent on the dispute between the S”ma and the Ta”z regarding the mechanism of a kinyan with money. The S”ma holds that money is the value of the purchase and it is used as part of the payment. Accordingly, this would not apply when one is giving a gift to another. However, according to the Ta”z, who holds that money is an act of acquisition similar to others; one can use the kinyan of money to acquire a gift.