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Thought for the Day: How, Precisely, Ownership is Transferred from One Party to Another

So you go the the fruit market to get an apple.  Just when does that apple officially become yours?  When you pick it up the fruit bin?  When you hand the money to the cashier?  When you take your apple back from the bagboy?  When you leave the store?

Who cares?  That's a perfectly reasonable question; so let's change the case.  You ordered a gizzy from an Gizzy's R Online, who dutifully charges your credit card and sends you a verification email that they have dropped your gizzy into the USPS postbox on the corner.  You wait a week, two weeks, a month... no gizzy.  You call and say it was never delivered; they offer their condolences, but say their responsibility ends once they drop it into the postbox.  (That actually happened to me.  I never got my gizzy nor did I ever order from them again.)

Of course I made the the case more complicated with sending via messenger and whatnot, but the principles are the same.  In fact, even in the original case, suppose the bagboy drops and steps on the apple.  Did he drop and step on your apple (good luck getting him to buy you another one), or did he drop and step on the store's apple?  As usual, in halacha we are not concerned about the size of the transaction, but on the principles involved.

A transaction always involves two parties: the מקנה/seller and the קונה/buyer.  (Please note that even though I am I am the words seller and buyer, this could equally apply to gifts; it is simply that there are no good English words that cover all cases.  I suppose I could have used "granter" and "accepter"; that that would have been annoying with no real gain in clarification.)  In order for a halachically bind transfer of ownership to occur, each has his part to play.  From the seller we need גמירת דעת/firm and unforced resolve to transfer the property to the buyer.  On the buyer's part we need some sort of physical demonstration that he has taken ownership.  (On caveat, it is possible to transfer ownership to someone even without their knowledge if it is a clear benefit to them; but that's another topic.)

Interestingly, there is no disagreement that the  גמירת דעת of the מקנה is mandated by the Torah; but there is a disagreement as to whether the physical demonstration of ownership on the part of the קונה is a Torah or Rabbinic requirement.

When you buy a book/apple/car/... acquisition is not effected by a monetary transfer.  Moveable objects need to be lifted or pulled toward you.  Why, then, do you give the seller money?  Because he will not have have גמירת דעת/firm and unforced resolve to transfer the property to you without greasing his palms.  That means you very could ask for you money back or a replacement apple if the bag boy drops and steps on your apple.

Houses and other immovable property, on the other hand can be effected by either money, document, or showing your ownership (with the גמירת דעת of the מקנה, of course).  The Sages required that we do all three to avoid arguments.  (Ok... minimize arguments.)  Usually the ownership of a house is demonstrated by the new owner taking the keys and locking the door.  There is an interesting case where that doesn't work.  Suppose a man wants to give his house to his wife before he leaves this world.  (Since his sons -- not his wife -- will inherit his property, he wants to leave her enough ownership so she has a place to live after his demise.  Note that a man's wife is not always his children's' mother. המבין יבין)  In that case, simply locking the door would not effect a transfer of ownership to her because she has always has the right to lock the door.  (Never fear; there are ways that work.)

R' Elchonon Wasserman was once asked how he was not swept in with the tide of communism that swept Europe in the early 20th century.  After all, many Jews were at the forefront of that battle.  With good reason, it seemed to offer a hope to be a part of ending the centuries of persecutions by making all people and nationalities equals.  He said that he read the Communist Manifesto and say that it took away personal property rights from individuals.  Right of property ownership and acquisition, he said, are fundamental Torah ideas.  Any ideology that uproots any Torah idea -- no matter how noble sounding -- is perforce wrong.


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