Kinyan Sudar/Chalifin-How it works

Kinyan Sudar/Chalifin:[1]

A. What can be acquired through the Kinyan?[2]

All items, whether moveable objects [i.e. Mitaltilin] or land [i.e. Karka] may be acquired through a Kinyan Suddar [otherwise known as Kinyan Chalifin]. This applies whether to a sale or to the giving of a present.

B. How it is done?

The buyer of the item, or receiver of the present, gives the seller, or present giver, a vessel of any value and tells him that “You are acquiring this item in exchange for the land or item that is being sold or given to me.”[3] Practically, however, the custom today is to no longer have the buyer/receiver tell the seller/giver the above statement, as it can be assumed that it is being given to him under these premises.[4] [In the event that witnesses are present then the Kinyan is done by the witnesses, as explained in Halacha D see there!]

C. Conditions to validate the Chalifin:[5]

The moment that the seller acquires the Sudar through taking/lifting [Meshicha] it, the land or sale item is acquired to the buyer/receiver in any area of the world that it exists. The transaction is valid even if the buyer/receiver did not make an acquisition on the item being bought/received and even if money was not transferred from the buyer to the seller, and even if a document was not written between the buyer and seller. No side of the parties may retract from the transaction once the Chalifin was done.

D. Witnesses:

It is not necessary to have witnesses who witness the transaction, and so long as both the buyer/receiver and seller/giver admit to the transaction it is legally binding irrelevant of witnesses.[6] Likewise, even if the transaction took place in front of Pesulei Eidus, it is valid being that they admit to each other that the transaction took place.[7] It is however advisable to have witnesses view the transaction in order so neither side can deny it having occurred.[8] In the event that witnesses are present, then one of the witnesses is to give an item that he owns to the seller/giver and have him acquire it as the Sudar/Chalifin transaction.[9] [This is in place of having the buyer/receiver give the seller his item.]

1. Is Kinyan Sudar a valid acquisition when done with a gentile buyer/seller?

Some Poskim[10] rule that Kinyan Sudar is valid even with a gentile. Other Poskim[11] however rule it is not valid with a gentile.

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[1] Michaber C.M. 195:1; See Toras Hakinyanim chapter 4 for a through summary on the topic of Kinyan Sudar

[2] Michaber C.M. 195:1; 203:1

[3] Michaber C.M. 195:1

[4] Rama C.M. 195:1

[5] Michaber C.M. 195:1

[6] Michaber C.M. 195:1; 189:1; Smeh 123:21; Rambam Mechira 5:9; Tosafus in Baba Basra 40a and Kiddushin 65 and Sanhedrin 6; Rashba in Bava Basra 40a in name of Rabbeinu Tam and Rif; Ittur, brought in Maggid Mishneh on Rambam ibid

The reason: As the only reason that witnesses are used for Kinyan Sudar is so neither party can contradict the transaction, and lie and deny it having taken place. [Smeh 195:4; 123:21]

Other opinions: Some Poskim rule one is required to have witnesses by the Kinyan Sudar/Chalifin in order for it to be valid. [Rashbam Baba Basra 40a; Shita Mekubetzes ibid in name of Raavad; Raavad Mechira 5:9; Tosafus Baba Basra 144a; Meiri Baba Basra 40a in name of Geonim] Some of these Poskim rule it suffices to be done in front of one witness. [Rashba ibid in name of Raavad] This dispute only applies when doing a Kinyan Chalifin/Sudar in order to finalize the sale. If however one is switching items with another, then it is valid according to all even without witnesses. [Toras Hakinyanim 4:12]

[7] Rama 195:1; Rosh 66:8; See Chidushei Harim 195; Smeh 2418; Toras Hakinyanim ibid

[8] See Smeh ibid

[9] Rama 195:3; Tur in name of Rosh

The reason: As today most Kinyanim take place not in front of the receiver/buyer and hence the custom became for the witnesses to give the seller/giver the item of Chalifin even when the buyer/receiver is present.[Rama ibid]

How it works: The witnesses act as the Shliach of the buyer/receiver and they thus acquire the item on his behalf through giving him their item. [Initial explanation in Ketzos Hachoshen 195:9; See Ramban 101; Toras Hakinyanim 4:18 footnote32] Alternatively, the reason it helps is because one is able to give an item to one person and have him acquire it to a third person. [Final explanation in Ketzos Hachoshen 195:9; Maharit C.M. 21]

[10] Rabbeinu Tam brought in Shach ibid; See Shaar Hakolel 32 in name of Maharil that Admur was accustomed to do a Kinyan Sudra with the gentile by Mechiras Chametz in order to benefit this Kinyan as well according to Rabbeinu Tam.

[11] Shach 123:30