[Aspaqlaria] Aspaqlaria

Fri Mar 9 02:34:43 PST 2007

Aspaqlaria

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Qinyan and Baalus

Posted: 08 Mar 2007 05:32 PM CST
http://www.aishdas.org/asp/2007/03/qinyan-and-baalus.shtml

Qinyan is usually translated acquisition, and baalus, ownership. I would suggest that neither translation is precise.

Qinyan

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

Property transfer requires the agreement of buyer and seller, not of the item (e.g. slave) being bought. Marriage requires the womans consent.
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 womans pointer finger so that she can make a qinyan on it by moving it to her ring finger. It is therefore NOT payment.
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 arent worth only a perutah, and yet that is all marriage requires.

I might add that the law of onaah 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 extrapolate from R JB Soloveitciks 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 isnt acquiring our chameitz, he cant 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 hateudah beyisrael  and this is a contract in Israel. Qinyan as accepting responsibility.

Baalus

R Dovid Lifshitz was once approached before shiur by somone who had recently bought a co-op. The problem was that the co-op board didnt allow him to change the appearance of the outside of his domicile from the co-ops standard by hanging a mezuzah.

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

Baalus, 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 baal 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.

PragmaticsWhat is the nafqa minah lehalakhah, the pragmatic difference, between halachic baalus and western ownership?

We already saw two:

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.
A renter has a measure of baalus 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 baalus.

The gemara (Pesachim 6b) tells us, there are two things which are not in a persons 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 gemaras 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 wasnt in his reshus when he died, so they dont 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? Shouldnt we argue that there was no sale, since its 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 gemaras 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 baalus and ownership gets the heirs off the hook.

The Broader Picture

This topic touches on two recurring themes in this blog.

Rights and Duties
The Semitic Perspective

First, note the difference between western ownership and halachic baalus. 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 halakhahs focus on duties to others, rather than the western focus on my looking at defending rights.

Second, note also that baalus is phrased not in terms of the object, but the owners relationship to it. Baalus is more of the Semitic Perspective, ownership, the Yefetic one.

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