[Avodah] Torah and Slavery

[Micha Berger]

On Tue, February 27, 2007 6:47 pm, kennethgmiller at juno.com wrote:
: What does 'kinyan' really mean? Is 'ownership' a real concept in
: halacha? LaSHEM haaretz um'loah!!!

In a few weeks (<gulp>) many of us will be appointing a shaliach for selling
our chameitz using a qinyan sudar. And in Rus, this form of qinyan is called
"hate'udah beYisrael". Qinyan doesn't mean "to buy", but rather take on a
responsibility.

Below is something I wrote to scj back on 22-Mar-00. The references are to
mail-jewish digests, not here.

As for ba'alus, I argued that it's the license that comes with that
responsibility, not ownership. Thus the idiom of being in someone's *reshus*.
I based that on something RDLifshitz taught about mezuzos on one's rental
apartment or a co-op. A strict co-op board could render the owner of a co-op
less ba'alus than a rentor with a liberal landlord, to the extent of possibly
giving him a petur from mezuzah! See
<http://www.aishdas.org/avodah/vol07/v07n016.shtml#26>, a reply to one of
RYGB's Vos Iz Der Chiluk challenges. I argued that "ke'ilu hein birshuso" for
bal yeira'eh would apply to something owned that is assur behana'ah and
therefore lacks ba'alus.

In another scj discussion, I relate this distinction to the West's focus on
rights, and thus property as something I can benefit from, with halakhah's
focus on duties, and therefore ba'alus and responsibility for something.

-mi


Here's some ideas that were bounced around on mail-jewish and in subsequent
private emails.

First, we can prove that although a wedding is sometimes called kinyan, it is
not a property transfer.

a- Property transfer requires the agreement of buyer and seller, not of the item
   (e.g. slave) being bought. Marriage requires the woman's consent.

b- Money recieved in exchange for a kinyan does not itself require a kinyan.
   (IOW, 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 kinyan on it by moving it to her ring finger. It is therefore
   NOT payment.

c- 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 also point out 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.

So the next question is defining the word "kinyan" and why it's being used
for weddings.

1- Perry Zamek in mail-jewish v29n63 writes:
: I would like to suggest an alternative interpretation -- "Kinyan" in the
: sense of undertaking, or obligation. (as in, he "made a kinyan to carry
: out a certain act") ...           Thus, she is not his property, but the
: beneficiary of his commitment.

1b- Oren Popper (v29n72):
: I would therefore suggest another interpretation to Kinyan - "to legally
: bind to...". In the few moments of thought I've given to this
: definition, it does seem to make sense for an appropriate interpretation
: to Kinyan across various contexts...

This is similar to Perry's idea, just more generalized. Oren doesn't feel that
the use of the word "kinyan" can in general refer to the kind of binding Perry
speaks of, that of accepting an responsibility.

2- Me (v29n81):
: [RYB Soloveitchik]  zt"l understands the key definition of the /knn/ root
: to be "to make". The same root is also used for purchasing because by
: purchasing we are trading manufactures. Buying an item therefore ties you
: to the object from the time it was manufactured -- not just from the point
: of purchase. You are really trading your effort for the effort made in
: making the item.
...
:                  the use of the word nikneis for marrying a woman [is]
: because of this retroactive effect. The couple were truly created for
: eachother. We therefore use the same *form* as purchasing even though
: purchasing is not involved.

3- By private email someone else suggested that kinyan means "a formal show
   of intent". Which is true for transfers of property, where it shows my
   intent to own or no longer own something. It's also true for weddings,
   even though the thing intended is very different.

5- In the above mentioned article, R Winston suggests the following explanation
   for why the concept of "kinyan" is used.
: A bag of money he took in his hand... (Mishlei 7:4)--there is no "money"
: except for the righteous, as it says "A bag of money he took in his
: hand..." (Sanhedrin 96b)

: The Talmud is saying that "money" is a euphemism for a "righteous person."
: And, there is a deep philosophical reason why, but, suffice it to say that
: both represent potential that can be spent in the service of G-d. This is
: why "Chanukah-Gelt" on Chanukah--a holiday that is all about using
: potential the righteous way--is such an important matter.

: Hence, we can conclude that, as much as the technical transaction of
: Kiddushin is performed with actual money, it is also symbolic of what a
: husband and wife are really agreeing upon--to sanctify themselves and their
: relationship by pursuing a common life of righteousness. This is the real
: "money" that makes the Kiddushin (literally, "sanctification") spiritually
: take effect, and what makes the marriage, ultimately, an eternal one.