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The 1901 Jewish Encyclopedia
The act of causing a thing to become the property of another—Alienation—is, in Roman and English law, the general term under which the change of title by gift, sale, or barter is treated. The rabbinical law looks at the transfer of property from the standpoint of the new, rather than of the old, owner: not from the view-point of him who alienates or parts with a thing, but of him who acquires ownership in it. The distinctions of the Mishnah and the discussions of the Talmud apply to Ḳinyan (Acquisition). Acquisition is brought about in different ways, according to the nature of the thing to be acquired—a slave, land, a commodity, or a claim. As the old owner's title ceases at the same moment that the new owner's title begins, the Talmudic law of Acquisition covers the same ground as that of Alienation in the jurisprudence of more modern times. The leading maxims on Acquisition are given by the Mishnah in the first chapter of the treatise "ḳiddushin" (Betrothals), which, beginning with the modes in which the right to a wife may be acquired, goes on to show how other rights are acquired,—for example, to a Jewish servant, a Canaanitish servant, a slave, land, etc.—and then how title is acquired in domestic animals, and other chattels (ḳid. 4:1). For the law touching commodities, and more especially for different kinds of currency, Baba Meẓi'a, 4:1-2, must be consulted. Setting aside the cases of the Hebrew bondman and bondwoman, who can not be transferred to another master, and omitting also the means by which the "Canaanite bondman" may obtain his freedom, the following general rules are given:
Modes of Acquisition.
A bondman is acquired by the payment of money, by deed in writing (sheṭar), or by taking possession (ḥazaḲah) (ḳid. 1:3). Animals are acquired according to their nature, by delivery to the purchaser, or by his removing or lifting them. The term most commonly used is meshikah (pulling, moving); and this is elsewhere applied to other movables (ib. 4). Things of value "bound by debt" (aḥarayut)—that is, land or things attached to the soil—and slaves are acquired by payment of money, by a written deed, or by taking possession (ib. 5). Other things, e., movables, are in themselves acquired only by bodily removal; but they may be made an incident or accessory to land or immovables, and will then pass with these when the land or immovable thing is acquired as above (ib.). As a general rule, in the case of barter, when one thing of value becomes the price of another, the Acquisition of one immediately changes title in the other (ib. 6). But (see see ACCEPTANCE) mere words of assent, though spoken by seller and buyer, or by donor and donee, in the presence of witnesses, have in themselves no force whatever.
Acquisition of Land.
The Alienation of land (ḲarḲa') is to be considered first. Whatever is attached to the ground is treated as land, except ripe fruits (such as grapes), which may be sold separately in the same manner in which movables are alienated. The Acquisition ofland by the payment of money or by taking a written deed is derived by the Talmud from the incidents related in Jeremiah 32, especially in the 44th verse: "Men shall buy fields for money, and subscribe the deeds and seal them." It may be remarked that in Talmudic language the sealing of a written document (sheṭar or geṭ) means neither more nor less than the subscription by the witnesses. No "sealing" of the deed of conveyance, however, is required in any of the passages of the Mishnah or Baraita which treat of such deeds; though such attestation is contemplated sometimes (see Priorities). While the proceedings described in Jeremiah 32:9-14 imply a custom of leaving a copy of a deed for land at some public or secret place (a custom equivalent to the modern law of recording deeds), the Talmud shows only slight traces of this useful institution; and these point to Roman influence (ḳid. 4:5; Yer. M. ḳ. 2:81b; Giṭ. 44a; Tosef., B. B. 8:2; see Jastrow, "Dict.," under the words and ).
It seems that while a deed is always sufficient to complete a gift of land, it is not sufficient of itself to close a sale of land until the price is paid, except in a case in which the owner "sells land on account of its badness"; that is, in order to get rid of it, and is therefore willing to risk the buyer's solvency rather than give him time to reconsider. Neither the Talmud nor the later standards undertake to define what is meant by a sale of land on account of its badness. But where the seller, upon giving a deed of conveyance, takes a bond for the whole purchase-money, or for the unpaid part; or when he states in the deed that he has received such a part and remains a creditor for the balance, he shows that he does not insist on cash in hand, and the sale stands, no matter how long the payment is withheld (ḳid. 26a; B. M. 77b, et seq.). But a partial payment of the purchase-money, unless it be expressly stated that the rest is held over by the buyer as a loan, with or without a written conveyance, entitles the purchaser only to a proportionate share of the land. This share is taken from the most desirable parts ('iddit), or from the least desirable parts (zibburit), according as the seller or the buyer demands the rescission; he who declines to carry out the contract has the "lower hand" (ib. 77b). When the seller, after receiving part of the price, continues to dun the buyer for the rest, it is proof that he does not consider the transaction closed, except in the case already mentioned, where he has sold the field on account of its badness (ib.).
The Tosafists on this passage remark that in the practise of their time these distinctions were dropped, and that dunning for the price does not defeat the sale. But the great standard works, such as that of Maimonides and the "Ḥoshen Mishpaṭ," maintain the rule about the seller who, in the words of the Talmud, "goes out and in" after his money.
Modes of Possession.
Payment of the purchase-money is sufficient by itself to bind both parties, but only in countries in which it is the custom not to write deeds for the transfer of land: where the custom requires such a deed the money payment alone is insufficient (ḳid. 26a). But the taking possession by the purchaser seems to be a full substitute for the writing of a deed. When possession is taken in the grantor's presence, his consent is implied; otherwise he must have given leave by such words as, "Take possession and acquire." Closing a fence or making a gap in it—no matter how small—or widening a gap, with a purpose of improving, or locking up a house, is an act of possession; and where the grantor delivers the key of a house, or the bucket of a cistern, which he has sold, such delivery is an authorization to take possession (Mishnah B. B. 3:3, Gem. 52b et seq.). Walking up and down over a field does not secure possess on of it; but where a footpath is sold, walking on it is enough; for this is its only use (B. B. 100a). Stony, unenclosed land, unfit for tillage, may be acquired by spreading fruit or letting one's cattle run over it (ibid. 29b). Of course, to sow or to reap or to gather fruit is an act of possession (ibid. 36b).
Where several parcels of ground are granted together, though they be in several countries and of the most diverse kinds or descriptions, the act of taking possession of one parcel gives the purchaser title to all, and binds the bargain as to all. However, if the parcels are sold for money, it seems that the price of all must be paid, else only those that are paid for will pass
The most effective manner of acquiring land is the so-called "purchase by kerchief" (Ḳinyan sudar), under the rule given above, that where one thing is made the price of another, the Acquisition of the one changes title in the other also. Now as an "implement" (keli) may be acquired by lifting it, it can easily be arranged that a kerchief—or any other object, such as a needle, even if worth less than a peruṭah (the smallest coin)—be made the nominal consideration, the real price being paid as the parties may agree. The custom was known also in the old German law, under the name of Mantelgriff (grasping the mantle). It is derived by the Talmud from the passage in Ruth, 4:7: "to confirm all things, a man plucked off his shoe and gave it to his neighbor." The change of ownership in the land being thus established, there was a foundation for the promise of the buyer to pay a further sum, the real price of the land; and the bargain was at once closed, so that neither side could withdraw (B. M. 47a). Only "implements" can be used thus; not coins nor "fruits" (perot), the latter term comprising grain and other eatables sold by quantity (ibid. ḳid. 28b).
Sale Limited by Time.
The owner of land may sell or give it to another for a term of years—an arrangement which differs from a lease in so far as there is no stated rent—or he may sell and give its produce for a number of years. In the former case, the grantee may "build and tear down," or, in the language of the common law, he is a tenant "without impeachment or waste"; in the latter case, he is on the footing of an ordinary tenant. And just as land or its produce can thus be given for a stated time, one or more fruit-trees, or their fruit, can be thus sold or given. But the land or trees, or their produce or fruit, after the term of years, must be reserved to the original owner or his heirs. The grantee can not alienate any unexpired time to a third person; for the use of the land or its produce from and after a time in the future, being a "thing that has not come into existence," can not be the subject of sale or gift (Maimonides, "Hilkot Mekirah," ). Hence, what the English lawyer designates as a "strict settlement," and the layman calls "tying up an estate," is impossible under the Jewish law.
A slave (Canaanite bondman) is in the main acquired like land; and what in the case of land is said as to a deed in writing or payment in money, would apply also to the purchase of a slave, except that there could be no apportionment of the thing bought to the part of the price that is paid. But the form of taking possession (ḥazaḲah)—which is the third manner of Acquisition—naturally differs from that in the case of land. Any service rendered by the bondman to the buyer, such as carrying articles for him, dressing or undressing him, rubbing or drying him after a bath, is sufficient.
The best opinion is that lifting or pulling, as in the case of domestic animals or of lifeless animals, is not applicable to aslave: instead of the buyer lifting his new slave as an act of possession, it would be more proper for the slave to lift and carry his new master as an act of service. But the slave may, like land, be acquired by the form of bartering him for a "kerchief" or other implement (ḳid. 22b). And a slave, like land, is deemed a thing "bound for debt"; hence, other things of value may be transferred with him as incidents.
Sale of Movables.
The rule that movables (meṭalṭelin) do not pass by the payment of the price in money, but only by "lifting or removal or delivery," is by most of the later teachers (Resh LaḲish dissenting, B. M. 47b) spoken of as a mere rabbinical institution. They explain that the Torah gives a binding effect to the payment of the price; but that the early sages feared that when the price was paid before delivery, room would be left for fraud, as the seller after receiving his money might claim that the buyer's goods had been burned or otherwise destroyed in his (the seller's) barn or warehouse, while already at the buyer's risk. Hence, in an unusual case in which such fraudulent practise is not to be feared, delivery is not required; for example, when the seller is in debt to the buyer for the price of another commodity (not, however, for money loaned), an oral sale in satisfaction of this debt is held binding without delivery (ib. Maimonides, "Hilkot Mekirah," 5:4).
While lifting is sufficient in all places, delivery to the buyer gives title only when it takes place either on the public highway or in a courtyard not belonging to either; and the buyer's own act of moving (meshikah) gives him title only when it is done upon the sidewalk, or in a courtyard that belongs to both; for in the act of moving, the buyer brings the article into his own domain. When goods of any kind are already on the grounds of the buyer, the bargain itself, price and all terms being fixed, is sufficient to change the title and bind all parties: when the goods are on the grounds of the seller, or of a warehouseman of the seller's choice, the buyer can attain the desired end by renting the place upon which the goods are placed. He thus comes into virtual possession (B. B. 85a, ḳid. 25b, 27a).
When a flock of sheep or when very bulky articles are bought, a formal renting of the place on which they are found is the easiest mode of closing the bargain, as the "purchase by kerchief" seems not to have been in vogue in dealing with chattels.
The Talmudic passage as to the requisites for changing title in a ship (B. B. 76a et seq.) is rather confused; and the commentators are not agreed either as to its true meaning or as to which of the disputants is right and should be followed. It seems clear that when the ship is in deep water, in the open sea, delivery is sufficient; but it is not clear what degree of removal is required when it is in a narrow, half-private inlet comparable to a sidewalk, or when it is drawn up on land.
Exchange of Coins.
Goods may be sold or given away as an incident to land. The Talmud (ḳid. 26b) mentions a case that happened in Jerusalem where a wealthy person wished to give to a friend goods of great value in different parts of the country. Upon the advice of competent lawyers that there was no other way to bring about his purpose, he went with his friend to a lot which he owned beyond the walls, and, announcing his intent to give him that lot and the goods named, put him in occupation of the lot, which thus included the goods. A written deed for the lot and the goods would probably have been just as effective. As movables are not acquired by payment of the price in money, a question arose over the exchange of two kinds of money, and it was held that the more current among them is to be treated as money, the other as a commodity: the delivery of the latter therefore binds the bargain, not the delivery of the former. The less current "buys" the more current. Thus "gold buys silver; copper buys silver; bad (e., worn or uncurrent) pieces buy good pieces; bathchecks buy coins"; but inversely, the bargain can not be clinched (Mishnah B. M. 4:1).
The Gemara (44a) on this section refers to an older opinion—evidently inconsistent with the Mosaic law—that, as between gold and silver coins, the former are to be considered money, and the latter "fruits," e., commodities. But gold or silver bars are commodities for all purposes.
With certain exceptions which necessity has engrafted on the rule, things not yet in existence, or which do not yet belong to the person attempting the sale, may not be sold (ACCEPTANCE). Things of undefined quantity, not yet weighed or measured, may be sold, such as a field of growing wheat, a stack of wine-jars, etc., subject, however, to recourse for overreaching (see OVERREACHING); for the law does not allow chancing bargains. But when the nature of the objects is unknown to either of the parties, e.g., "I sell to you whatever this house contains," the sale is void; though the goods may have been formally "moved" to satisfy the requirements of meshikah.
Sanctity of Contracts.
Although a trade between buyer and seller could not be enforced after the money had been paid but the goods not been delivered to, or removed by, the buyer, it was deemed binding in the forum of conscience, as the Mishnah says (B. M. 4:2): "He who collected His demands from the age of the Flood and the age of the Dispersion, will hereafter collect His demand from the man who does not stand by his word." Upon a precedent given in the Talmud, the custom grew up that in such cases, the party taking advantage of the rule of law, by asking the return of the price, or by refusing to deliver the goods and tendering back the price, would be summoned before the judges, and be solemnly informed by them in the above words: "He who collected," etc. (to which is added, B. M. 48a: "and from the men of Sodom and Gomorrah and from the Egyptians who were drowned in the sea"). According to the better opinion this was an imprecation, the public warning being evidently meant as a punishment, and in the hope that the fear thereof would induce men to carry out their contracts of sale, though a rise or fall in the price of the commodity (such as salt or wine) might cause loss (B. M. 48b).
Transfer of Claims.
The old Mosaic law, like the early Roman and early common law, did not recognize the sale or transfer of a claim to a third person. But the Scribes, like the Roman and English jurists, devised ways and means of overcoming this defect and of treating claims as subjects of gift or sale (Giṭ. 13b et seq.). An old Halakah establishes the validity of the transfer in one particular case known as the "meeting of three." This occurs when the creditor, the debtor, and the proposed assignee are all together: a transfer made even by word of mouth is then binding. This rule is stated as if it were arbitrary and rested on tradition alone; but it is thoroughly logical. For if the debtor is present and assents, there is, in fact, a new agreement on his part to pay his debt to the assignee; while the old creditor releases him, and the new promise is based on this release. But when the three do not meet, a delivery of the bond or written obligation (sheṭar) for the debt is insufficient to change the title; for the bond is not the debt, it is only evidence thereof. The creditor, besides delivering the bond, should give to the assignee a written order on the debtor; and thus the transfer is said to be made by "delivery and writing" (B. B. 75b, 77a).
But as the Mosaic law knows nothing of the sale of claims, the old creditor and his heirs would still have the power to "forgive"[cancel] the debt; and the debtor might claim the benefit of such a release, because he was "bound" only to the original, not to the new, creditor. Hence, some of the later rabbis suggested that a clause be inserted in every bond to the effect that the debtor should be bound not only to the creditor, but to any one deriving rights from him; thus rendering it a note payable to "A. B., or order," which would be in a measure negotiable.
Another way of disposing of claims by sale or gift was found in the maxim above given, that things of value can be made to pass with land or slaves. Hence a debt, no matter how large, secured by a bond or an open account, might be made an incident to a plot of land, no matter how small; and if the proper steps were taken to pass title in the lot (for instance, by occupation), the title to the debt would pass also, though neither the debt nor the deed evidencing it, was in any way connected with the land (B. B. 77b).
Acquisition by the Sanctuary (HeḲdesh).
The "power above," which meant the representatives of the community of Jerusalem, whenever buying on behalf of the Sanctuary, could purchase both land and chattels without taking possession, either by the payment of the price or even by word of mouth. "'This ox is a burnt-offering,' 'This house is consecrated,' are effective words, though the objects be at the end of the world" (Mishnah ḳid. 1:6, Gem. 28b et seq.).
Privileges of Orphans.
Orphans under guardianship are, as to their inherited goods, to some extent governed by the same rules as the Sanctuary, and even have certain privileges, not discussed by the Talmud as belonging to the Sanctuary. If, after the orphans have sold "fruits" but have not yet received the money, the value of the "fruits" rises, the orphans may set the sale aside; for their goods can be acquired by payment only. Should the goods fall in price, the buyer who acquired them in the usual way must keep them. If the orphans have received their money, and the "fruits" have risen in price before removal, the sellers may reconsider, like adults. Should the price of the "fruits" fall, then the buyers may withdraw, but remain under the imprecation mentioned above, "He who collected," etc. Again, when the orphans have bought commodities and taken possession, but have not yet paid the money, and the commodities rise in value, the orphans are no worse off than others and may insist on their contract. On the other hand, should the commodities become cheaper, the orphans may not withdraw; for under such circumstances no one would sell commodities to them on credit. Lastly, if the orphans have paid the price, but have not taken possession, they may withdraw like others, in case of a fall in price. But if the commodities have risen the seller may retire, and suffer the usual imprecation; for, should the rule be fixed that the orphans gain title by paying the price, the seller might pretend that the goods had since been lost by fire or been stolen by robbers while in his possession (Maimonides, "Hilkot Mekirah," 9:3-6).
Question of Priority.
A question of priority may arise, when the same land has been sold, or disposed of by donation, to two or more parties. Among the early Amoraim there arose a dispute whether the parties should divide or the judge should use his discretion (shuda de-dayyane) to decide the priority of the claimants; the latter opinion prevailed, so that only in the absence of such evidence will the parties be called upon to divide. The decision will not be determined so much by the evidence of the witnesses whose attestation forms the seal of the deed, as by that of the witnesses to its delivery, if such there be; for deeds take effect not from the time of attestation, but from the time of delivery. Where the custom of marking the hour of delivery upon the deed obtains, a deed bearing the hour will prevail over the deed of the same day without the hour; and a deed bearing the day and month will prevail over the deed bearing the month only (Ket. 94a et seq.). According to the standard codes, a deed of gift will be rejected when in conflict with a subsequent sale of land, unless it has been made public, so as to warn all other persons against purchasing the subject of the gift. A deed of gift is under suspicion of fraud unless it contains words of request to the attesting witnesses to publish the gift widely; and even as between two deeds of gift the second should be preferred when it contains such words and is made public, while the first is kept secret or does not contain a request for publicity (Maimonides, "Hilkot Zekiyah u-Mattanah," chap. ).
Conditional Sales or Gifts.
The law of conditional sales or gifts is rather obscurely stated in the Mishnah (B. M. 7:11), and the Gemara upon it (94a) is too scanty to elucidate it. Rashi (ad locum) thinks that an impossible condition is to be disregarded, even if named as preceding the act. Maimonides ("Hilkot Mekirah," chap. ) derives from the Mishnah the following rules:
When one grants either land or goods, and conditions are set up by either the grantor or grantee which are possible of fulfilment, then if the conditions are fulfilled, the object passes; otherwise it does not (ib. 11:1). This holds, however, only when the grant is made in the prescribed way (deed of land, moving of goods, etc.), and the grantee has to perform the condition thereafter; but if the title is not to pass at once, and it is agreed that it shall pass when the condition is performed, it will not pass even on performance; for there is an "insincere promise" (ASMAKTA), and the title can not pass, as it was not intended that it should (ib. 11:2). For instance, A has sold or given his house to B, on condition that B shall, on a named day, go with him to Jerusalem; and B has occupied the house: then, if B goes on the date specified, the house is his. But if A tells B, "If you go to Jerusalem, I will give you the house, or sell it to you for so and so much," and B goes and thereafter occupies the house, the sale or gift does not take effect (ib. 11:3). Hence where earnest-money is given to bind a bargain, with the understanding that the giver shall forfeit it if he withdraw from the bargain, but the receiver shall return it doubly if he withdraw, only the former part of the agreement can be carried out, and not the latter (ib. 11:4). Though the conditional agreement for a transfer in the future be made before witnesses or by deed in writing, it can not be carried into effect (ib. 11:6).
- The subject of this article is discussed by Maimonides in Hilkot Mekirah and Hilkot Zekiyah;
- by the author and the annotators of the Ḥoshen Mishpaṭ, §§ 189-213, 241-249.
- H. R. Fassel, Mishpeṭe El: Das Mosaisch-Rabbinische Civil-Recht, 1852-1854;
- idem, 'Asot Mishpat: Das Mosaisch-Rabbinische Gerichtsverfahren, 1858.
- Bloch, Das Mosaisch-Talmudische Erbrecht, Budapest, 1879;
- idem, Das Mosaisch-Talmudische Besitzrecht, Budapest, 1897.
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Singer, Isidore, Ph.D, Projector and Managing Editor. Entry for 'Replevin'. 1901 The Jewish Encyclopedia. https://www.studylight.org/encyclopedias/eng/tje/r/replevin.html. 1901.
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