Qinyan and Ba’alus

(Originally posted Mar 2007, now enlarged.)

Qinyan” is usually translated “acquisition”, and “ba’alus“, “ownership”. I would suggest that neither translation is precise. And this imprecision only leads to difficulties in understanding the law, rather than the clarity we get by analyzing the halakhah on its own terms.

This is another instance of what we looked at in “The Country of Yir’ah“, where we saw (I hope I succeeded to show people) the limitations of trying to understand and internalize the middah of “yir’ah” by working within the English categories of fear and awe rather than dealing with yir’ah as a fundamental concept, as Jewish tradition cut those borders.


Although a wedding is called qinyan, and the laws are derived from Avraham’s acquisition of a field from Efron, there are a number of ways it differs from the halakhos of a property transfer.

  1. Property transfer requires the agreement of buyer and seller, not of the item (e.g. slave) being bought. Marriage requires the woman’s consent.
  2. Money received in exchange for a qinyan does not itself require a qinyan. I need not do anything to take possession of the money given me to buy my house. However, the ring is put on the woman’s pointer finger so that she can make a qinyan on it by moving it to her ring finger. It is therefore NOT payment.
  3. Also, payment effects the sale. If I were buying land, the land does not become mine until money actually changes hands. If someone owed me money and I pardoned the loan as payment for the land, I did not receive ba’alus. And if the purchase was of merchandise, the curse of “mi shepara” applies only after money exchanged hands; and a pardoned loan would not qualify someone for it.

    However, a woman who owed a man money could be married by pardoning the loan. The measure isn’t the motion of money, but her receipt of hana’ah (benefit / enjoyment) of some measurable value. Again, proving the giving a ring is not about payment.

  4. In his “Perceptions” for Chayei Sarah 5760, R Pinchas Winston writes:

    Given that the amount of money needed to be transferred is minimal and fixed, regardless of the financial worth of either the husband- or wife-to-be, this is obviously not a simple financial transaction taking place over here.

    This is an important point. People aren’t worth only a perutah, and yet that is all marriage requires.

    I might add that the law of “ona’ah” voids any sale where the price was more than 1/6th away from market value in either direction. Yet a marriage can involve the transfer of a perutah, or of a gold ring.

This would establish that the meaning of qinyan is broader than “acquisition”, and is being used in this broader sense when speaking of marriage.

In an earlier entry I extrapolated from R’ JB Soloveitcik’s identification of the root of “qinyan“, \קנה\, with the notion of manufacture and repair. That a qinyan is a means of exchanging ownership caused by developing one thing for the work someone else put into their object or service. I therefore suggested, “By making marriage assume the qinyan format we are acknowledging that the bride and groom were literally made for each other, and hopefully will remain together until the end of time.”

Thus, qinyan refers to the work and to the responsibility of repair. This would explain why many of us, in less than a month, will be performing a qinyan sudar, a kind of qinyan involving handing over a small object, usually cloth, to delegate the job of selling our chameitz. The rabbi isn’t acquiring our chameitz, he can’t own it any more than the rest of us can. He is assuming the responsibility for its sale, to serve as our shaliach, our proxy.

In the same way, Boaz takes responsibility for marrying Rus (in a quasi-yibum) by the exchange of a shoe with the unnamed relative. This too is a qinyan, “vezos hate’udah beyisrael — and this is a contract in Israel”. Qinyan as accepting responsibility.


R’ Dovid Lifshitz was once approached before shiur by someone who had recently bought a co-op. The problem was that the co-op board didn’t allow him to change the appearance of the outside of his domicile from the co-op’s standard by hanging a mezuzah.

Rav Dovid suggested (warning: I can’t recall if this was his conclusion or a hava amina, a possibility raised to be rejected) that perhaps someone who doesn’t have the authority to hang a mezuzah lacks ba’alus, and therefore wouldn’t be obligated to. (In either case, he suggested moving to a friendlier venue.) Note the implication: even if this lack of ba’alus is not sufficient to remove his obligation, it remains that a renter who can hang a mezuzah has more ba’alus than an owner who may not. And in any case, a renter doesn’t own, but is a ba’al with respect to hilkhos mezuzah. Ba’alus is not the same concept as that denoted by the English word “ownership”.

Ba’alus“, and similarly “reshus“, have to do with control over the object. Note the literal translations of the words: one means “master” and the other “has permission”. The ba’al must have the liberty necessary to execute his responsibilities that he was qoneh, and thereby has the permission to use it for himself. Authority without responsibility is immoral, responsibility without the authority to execute it is impossible. A person would accept the responsibility in exchange for the right to be able to use an object.


What is the nafqa minah lehalakhah, the pragmatic difference, between halachic ba’alus and western ownership?

We already saw two:

  1. A qinyan therefore need not imply authority over an object, merely the ability to execute the responsibilities necessary. Thus, it can be used for non-purchasing situations like marriage or appointing a delegate to sell chameitz.
  2. A renter has a measure of ba’alus because he has responsibilities and rights toward the think he rented. Despite a lack of ownership.

There is also a more subtle difference. What about a case where the item is prohibited? He could still possess it in the western legal sense. But he lacks the license necessary to be held responsible for it so we should conclude he lacks ba’alus.

The gemara (Pesachim 6b) tells us, “there are two things which are not in a person’s reshus but the scripture makes it as through they are in his reshus” — a pit (or a hazard in general) dug in a public area and chameitz (Pesachim 6b). The gemara‘s reasoning is straightforward from the distinction we made; since reshus is about control, something from which he is fully prohibited to get any benefit is not in his reshus.

Take the case of someone who did not sell, nullify, disown or destroy his chameiz before Pesach and then dies before the holiday is over. According to the Noda beYehudah (MK OC 20), based on this gemara, the chameitz wasn’t in his reshus when he died, so they don’t inherit it, and they have no obligation to destroy the chameitz on Pesach.

However, the Rambam (Chameitz uMatzah 1:3) writes that someone who buys chameitz on Pesach is punishable with lashes (assuming witnesses who warned him, etc…)! Why? Shouldn’t we argue that there was no sale, since it’s impossible for him to have chameitz in his reshus at the time of the transaction?

There the Noda beYehudah (ibid 19) argues that since the verse makes it as though it is in his reshus, it is sufficiently “as though” for the transaction to be prohibited. The Noda beYehudah seems to be drawing a distinction between inheritance, which is passive, and an attempt to purchase. The gemara‘s “as though it is in his reshus” could not include something with no action and no halachic state. It would therefore be a prohibition against attempts to gain western-style ownership, even though it can never be in your reshus.

And so, the difference between ba’alus and ownership gets the heirs off the hook.

The Broader Picture

This topic touches on two recurring themes in this blog.

First, note the difference between western ownership and halachic ba’alus. Halakhah places the notion of duty first, I can use something because I first accept responsibility for it. This is part of the general distinction in halakhah‘s focus on duties to others, rather than the western focus on my looking at defending rights.

Second, note also that ba’alus is phrased not in terms of the object, but the owner’s relationship to it. Ba’alus is more of the Semitic Perspective, ownership, the Yefetic one.

Rights, Duties and Covenants

אמר רבא: כל המעביר על מדותיו מעבירין לו על כל פשעיו

Rava said: Whomever is “maavir al midosav“, they [the heavenly court] passes [ma’avirin] over all his sins for him.

— Shabbos 17b

What is this “maavir al midosav“? As we saw earlier:

The first definition will look at is provided by Rashi (ad loc). It’s one who does not mete out judgment to those who mistreat him.

The gemara (Yuma 23a) says it’s someone who forgives others when he is slighted. … How do we explain Rashi’s willingness to give a different translation to that of the gemara? Perhaps they are not so much defining ma’avir al midosav as giving examples of the behavior of someone who mastered this middah rather than the middah itself. In other words, if we view ma’avir al midosav as an attitude, we cannot see it directly in others, and therefore we look at how the person acts. The actual definition, therefore, would be a character trait that would motivate not demanding exact justice and standing on one’s rights and also motivate forgiving slights to one’s honor.

Two obvious questions arise:

We can understand the form of the reward. Someone who forgives others is forgiven himself — it is middah keneged middah, the reward is of the same type as the act. But what is the great value of this middah that the magnitude of the reward is so great. For it to allow the overlooking of all sin would be to imply that the maavir al midosav is someone who mastered a truly central piece of the Torah’s message.

Second, what is this gemara asking of us; are we supposed to be doormats?

To understand this middah, lets look at contrasts from either side:

Western Civiliation, since the American revolution, as tended toward legal system based on defining rights. John Lock wrote of the natural writes of “life, liberty and property”. To Thomas Jefferson, these are endowed by G-d and inalienable, and (perhaps to avoid issues of slavery and what would later be called communism), “property” was replaced by “the pusuit of happiness”. But clearly, the US, and subsequently many other governments, are built on a Lockian conception of the role of law.At first glance, one would think that there is little real difference between a legal system based on defining the rights of each party, and one in which the philosophy is based on one’s duties. After all, is there a difference between granting people a right to property and giving people the duty to avoid theft and damages?

I feel, however, that there are very real differences.

First, a psychological difference. Rights are about protecting “my own” from being encroached upon by others. Rather than looking at what I’m supposed to do, the system is set up to encourage me to make sure I got mine. From which the current culture of entitlement, and the insane abuse of tort law, are a minor step — “Do I still got mine?” to “How can I get mine?” The culture is set up to encourage such a progression.

Second, a rights-based law is about maximizing autonomy. Does each person have sufficient conceptual space, to act with full liberty and freedom? There is no establishment of society’s moral stance. One watches for intereference from others, but one is making an ideal out of maximizing autonomy rather than harnessing that autonomy to some end.

This is a consequence of moral relativism. Because there is no real belief in an absolute moral standard, of a territory people’s personal standards are to map, there can be no meaningful attempt to implement one in the law. Therefore, one encourages freedom to act as an end itself, rather than as a means to greatness.

Therefore is therefore no room in a rights-based law for protecting able minded adults from themselves. So, for example, regardless of one’s position on the immorality of homosexuality, the foundational philosophy of American law does not support such a ban. (I’m not saying that’s a good thing, just observing the facts.) With the goal being the maximization of autonomy, how can one ban what two adults do behind closed doors with no direct impact on others?

However, the lack of establishment of a common moral code is itself damaging to society. No one private violation of moral code, whatever the society holds it to be, will necessarily harm others. But living in a society that doesn’t promote morality, that doesn’t work toward aiming that autonomy toward some higher end, is harmful.

So the Torah does not laud the notion of standing for one’s rights.

However, does this mean this philosophy is wrong for the US? Well, how does halakhah define what’s right for a secular government?

רבי חנניה סגן הכוהנים אומר, הוי מתפלל בשלומה של מלכות–שאלמלא מוראה, איש את ריעהו חיים בלעו.

Rabbi Chanania, the assistant-head of the kohanim would say: You should pray for the peace of the kingdom, for without the fear of it, a person would eat his neighbor alive.

— Avos 3:2

A civil law exists to provide peace. And that the American Constitution does quite well, among the most effective systems in history.

Looking at the other side, why did the US choose a rights-bases system? England was based on duties. These were obligations and prohibitions assigned by royalty and priviledged classes. The other extreme from a rights-based law is one in which our obligations are imposed on us. If rights-based law is overly prone to a culture of entitlement and license, than a duty-based law is equally dangerous because it is prone to totalitarianism, and oppression by a dictatorship or oligarchy.

How then is halakhah structured? The Torah describes itself as a beris. (Technically, multiple berisim are found in it.) A covenant.

How does a contract differ from a covenant? A successful contract is one where the outcome is a win-win. Each party takes away what they need from the deal, in exchange for giving up something that didn’t matter as much to them.

A covenant, however, creates a new community. A marriage is not a contract, an exchange of favors. It creates a new unit, the married couple, and each enters the marriage covenant with the commitment to contribute to the wellfare of that community of two.

Halakhah is neither a system of rights nor of duties to another, it’s a covenantal system by which G-d and the Jewish people (or in the case of Noachide Law, G-d and humanity) form a community together and work to the betterment of that entity.

Let’s look how each of these three would define chessed, kindness:

  • Rights-based: There is no equivalent. By definition, a rights based law guarantees that each person gets what is due them. There is no way to phrase a concept of giving people without it being due.
  • Duty-based: I am obligated to give to the other.
  • Covenantal: I hold a resource of the covenantal community. It is not only mine, but something I was given stewardship of in my role as part of the whole.

This last definition is that of R’ Shimon Shkop, to (yet again) return to his introduction to Shaarei Yosher:

Although at first glance it seems that feelings of love for oneself and feelings of lovefor others are like competing co-wives one to the other, we have the duty to try to delve into it, to find the means to unite them, since Hashem expects both from us. This means [a person must] explain and accept the truth of the quality of his “I”, for with it the statures of [different] people are differentiated, each according to their level.The entire “I” of a coarse and lowly person is restricted only to his substance and body. Above him is someone who feels that his “I” is a synthesis of body and soul. And above him is someone who can include in his “I” all of his household and family. Someone who walks according to the way of the Torah, his “I” includes the whole Jewish people, since in truth every Jewish person is only like a limb of the body of the nation of Israel. And there are more levels in this of a person who is whole, who can connect his soul to feel that all of the world and worlds are his “I”, and he himself is only one small limb in all of creation. Then, his self-love helps him love all of the Jewish people and [even] all of creation.

In my opinion, this idea is hinted at in Hillel’s words, as he used to say, “If I am not for me, who will be for me? And when I am for myself, what am I?” It is fitting for each person to strive to be concerned for himself. But with this, he must also strive to understand that “I for myself, what am I?” If he constricts his “I” to a narrow domain, limited to what the eye can see [is him], then his “I” — what is it? Vanity and ignorable. But if his feelings are broader and include [all of] creation, that he is a great person and also like a small limb in this great body, then he is lofty and of great worth. In a great engine even the smallest screw is important if it even serves the smallest role in the engine. For the whole is made of parts, and no more than the sum of its parts.

Therefore it is appropriate to think about all the gifts of heaven “from the dew of the heavens and the fat of the land” that they are given to the Jewish people as a whole. Their allotment to individuals is only in their role as caretakers until they divide it to those who need it, to each according to what is worthy for him, and to take for himself what is worthy for himself….

What then is the profound value of the maavir al midosav? It is the central middah necessary to enter a beris. It truly is the underpinning of the entire Torah, being both necessary for properly accepting the Torah, and for the relationship with your soul, with Hashem and with other people that the Torah calls from you.

… The rest is commentary

(More material added on May 30th.)

There is a famous story in the gemara (Shabbos 31a) about three prospective converts who each came to Shammai saying that they want to convert but only if he meets some absurd condition. In all three cases, Shammai turns them away, they go to Hillel, who accepts them, they convert and they drop their requirement. The gemara describes the second one as follows:

Again it happened that a non-Jew came before Shammai and said to him, “Make me a proselyte, on condition that you teach me the whole Torah while I stand on one foot.” Thereupon he pushed him away with the builder’s ammah-stick which was in his hand. When he went before Hillel, he said to him, “What you hate, do not do to your peer: that is the whole Torah, the rest is the commentary. Go and learn it.”

There is much to be said about the story. For example, the prospective convert uses the idiom “while I stand on one leg”, rather than saying “summarize”. And Hillel’s reply is to establish the whole Torah on one leg, on one principle. Perhaps Shammai’s response is that Torah is about the measures and sizes, and can’t be explained without all the details of the halakhah. That the Torah is about the legal structure that Hashem and the Jewish people build in a redemptive partnership (to describe it in terminology from Ish haHalakhah).

But the point that hit me this morning that motivated this post was something else.

Is there a natural morality, an innate sense of right and wrong? Somehow all of humanity labels theft and murder as evil. Everyone has a yeitzer hatov calling him to good and yeitzer hara pulling the other way. And yet, a tinoq shenishba, a child raised in a home devoid of Torah values, is judged more leniently because of that experience. We do not assume it’s innate in him as well.

Rav Soloveitchik notes on a number of occasions that every mitzvah in the Torah has an element of choq, of incomprehensible law followed purely because G-d said so — the opposite of a natural morality. For example, without the revelation of halakhah, would we know whether the concept of murder should or shouldn’t include abortion? What about euthanasia? At what point is a person already dead? Do you endanger many to save one life? Halakhah gives us the tools to make determinations that innate morality is not equipped to answer.

However, in other cases the halakhah is simply to do what’s right. “Be holy, for I Am holy”, which the Ramban famously explains as a prohibition against being “disgusting with [what would otherwise be] the permission of the Torah”. How does one define menuval, someone who is disgusting? “veAsisa hatov vehayashar — And you shall do the good and the straight.” It is presumed we have an innate definition of holiness, good, and rectitude that the Torah is commanding us to follow that extends beyond the other, more legally styled, mitzvos.

So, we are outright commanded to be moral in ways beyond those spelled out in legal terms. We must be holy, we must be tov veyashar. How are we to know what these mean? The case for a Natural Morality seems impeccable.

Natural morality is based on empathy. “What you hate, do not do to your peer.” In a somewhat flawed way, it drives the Notzri Golden Rule, as well as the Hindu concept of Karma. (The Golden Rule, by the way, would require my giving away all I own to the next person I meet, wait hand on foot on others, etc… Taken at its word, the creed is un-livable.) I know something is wrong because I wouldn’t like it — and I am aware of another’s pain when I do it to them.

Morality from empathy is limited, as we pointed out above. Even though there exists a simple underlying morality, it is being applied to a complex world. Results are often surprising and counterintuitive. And so, Hashem gave us a book and a process to help explicate the problem. Rather than trying to deduce behavior through that complex mapping of effects and side-effects, on impacts of things we can’t fully understand like our minds and souls, Hashem gives us a law, a set of applications. The relationship between halakhah and natural morality is that between quantum mechanics and endocrinology. It is theoretically possible to deduce endocrinology by studying the problem in terms of subatomic particles and the four basic forces. In practice, no one is up to the task, and an attempt to do is bound to occasionally lead to mistakes that are the direct opposite of reality. It is easier and more reliable to treat a diabetic by studying endocrinology directly.

However, even though it is limited, such natural morality is indispensible. In cases where the letter of all the specifically phrased halakhos permit, we may find that it allows disgusting, unholy, evil or perverted behaviors as we naturally understand the terms. These too are prohibited.

Particularly in the realm of interpersonal mitzvos, these must arise often. When exploring man’s relationship with Hashem, it is extremely difficult if possible to picture “what would we hateful to me” if I were (so to speak) in His Situation. However, when deciding whether or not someone should get paid, such analysis are actually tractable.
The Sho’eil uMeishiv 1:44 prohibits copyright violations on these grounds. Beyond simply “the law of the land is [Torah] law”, the obligation to observe local civil law (when not designed for persecuting Jews), he argues that any moral right defined by general society must be observed halachically. Once society recognizes intellectual property, it has halachic significance. I would argue that this too resides in the obligation to “do the good and the upright”.

I think the same must be kept in mind when looking at cases in the many English popularizations of the laws of finance and business. They give cases, often for the purpose of showing the non-intuitive result. However, I am not sure lenient non-intuitive results are real. How is getting away with not having to pay something you would expect on the gut level to pay qualify as “tov veyashar“?
Empathy gives general guidelines, but no tools for navigating the gray areas and the questions that involve conflicting values and priorities. Therefore one needs commentary to explain further. And that commentary one must “go and learn”. It goes beyond the innate. But it also doesn’t neglect the innate.

The Butler’s Dilemma

A moral dilemma taken from the Dilbert Blog by newspaper cartoonist, Scott Adams:

Let’s say you’re the butler to a billionaire who lives alone. The billionaire dies in his sleep. You know he owns a large piece of jewelry that no one else has seen, and you have access to it.

If you steal the piece of jewelry, sell it, and give the money to an African charity, you can feed an entire village for a year. The village would otherwise starve. If you don’t steal the jewelry, it will go to his surviving family who has so much money they won’t care about it.

Obviously it is illegal to steal the jewelry and feed the starving village in Africa. But do you have a moral obligation to commit the crime for the greater good?

And if so, do you likewise have a moral obligation to steal anything else you can get your hands, from dead billionaires or living neighbors, if you can use the stolen property for the greater good?

The problem becomes much simpler within a halachic framework. A person who stole to feed his own children is still violating the prohibition against geneivah. It is only when one deals with mitzvos like “ve’asisa hatov vehayashar — and you shall do the good and the just” that one is called upon to make one’s own moral choices. Otherwise, the choice is on a legal level — and charity doesn’t trump theft.

Politeness and Taharah

The word “polite” comes from the Latin “politus” via the Old English “polit”, to polish. Polish is itself of the same derivation.I think this is a very telling statement about Western Culture. Politeness is about perfecting the surface. It doesn’t demand a change of the self, but putting up the appropriate front for others.

This is the key to a contrast Stephen Covey (most famous for “Seven Habits of Highly Effective People“) makes between his approach to self-help and the majority of the field. His book is about finding your core values and seeing how to implement them — including improving your relationships. To give an example Covey doesn’t make explicitly, Dale Carnegy deals with improvement by giving pragmatic and surface-polishing approach, “How to Win Friends and Influence People“.

In Mesukim MiDevash for Chukas, I identified the Jewish approach to the relationship between mind and the physical world with taharah. Taharah is also the term used for the purity of a metal — the menorah must be made of (pure gold). zahav tahor. Taharah, then, is the lack of adulteration of the mind with prejudices caused by the body. Free to choose when to pursue its physical needs and desires, man can consciously control his relationship to the physical world and the people we encounter in it.

Judaism looks to create ba’alei chessed, people who relate to this world primarily in terms of its opportunities to give and share with others. Not to simply be polite and act inoffensively. Which doesn’t quite work; backstabbing while smiling and using just the implications is a feature of “polite society”. But to actually have a relationship with the other.