Q&A: Kinyan by Exchange
Kinyan by Exchange
Question
Hello Rabbi Michael Abraham,
How do we understand kinyan by exchange according to the view that it is effected with the transferor’s vessel,
and according to Tosafot’s explanation that it is specifically the transferor’s vessel?
Thank you very much.
Answer
I don’t know how to translate every law into a conceptual framework, but I can try to speculate.
In my column series 524–5, I explained that in my view exchange is the primitive form of acquisition that preceded the legal-economic conceptualizations. The source from the Book of Ruth is only a textual support or an indication. Reuven wants X and Shimon wants Y, so they exchange. This is from before the age of money and more modern sophistication. But that is with equal exchange, meaning barter. There there is no room to discuss whether it is done with the transferor’s vessel or the acquirer’s vessel, because in that kind of exchange there is no transferor and acquirer. It is symmetrical. Only in monetary acquisition can you define a transferor (who gives the merchandise and receives money) and an acquirer (who receives the merchandise and gives money). The kerchief-exchange form is an acquisition that developed after the economic-legal conceptualization, and it resembles monetary acquisition. So there you do have an acquirer and a transferor, but it is still an extension of the ancient exchange acquisition, meaning it is done as a natural and simple form of acquisition. From that it follows that if the transferor is supposed to give the merchandise to the acquirer, then the natural act in the acquisition is performed from his side. Perhaps that is the reason for using the transferor’s vessel. According to the view that it is with the acquirer’s vessel, they apparently see the later form of acquisition as more similar to modern acquisitions and do not continue to model it on the ancient exchange. And in the modern framework, pulling the merchandise effects acquisition for the acquirer.
Discussion on Answer
That is the Talmud in Bava Batra, and the commentators already noted that in other passages it seems not to be so. According to that description, in its plain sense exchange is nothing more than monetary acquisition (the benefit is money’s worth).
The problem is that if exchange is a monetary acquisition, then why specifically the acquirer’s vessel? On the contrary, the transferor’s vessel would be preferable.
*Correction:
why specifically the transferor’s vessel? On the contrary, the acquirer’s vessel would be preferable.
How does that fit with the Talmud, which says that the acquisition takes place through the benefit the buyer gives the seller by agreeing to accept the item?