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.

Qinyan

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.

Ba’alus

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.

Pragmatics

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.

One thought on “Qinyan and Ba’alus

  1. Pingback: Aspaqlaria » Blog Archive » Gender Differences: Oaths

And your thoughts...?