Q&A: The Transferor’s Intent in the Act of Acquisition (Acquisition by Pulling)
The Transferor’s Intent in the Act of Acquisition (Acquisition by Pulling)
Question
Hello,
What do you think about the following case:
Reuven, the buyer, mistakenly thinks that Shimon, the transferor, told him to acquire the item. For example: Reuven dreamed at night that Shimon told him to acquire his cookbook by pulling it, and Reuven mistakenly thought that this had really happened. Another example: Shimon’s cookbook was mistakenly placed somewhere that caused Reuven to think it was being offered for sale (if the manner of the mistake makes a difference in your view, I’d be glad if you would mention and explain it).
In this case, just before Reuven came to perform the act of pulling on Shimon’s cookbook, Shimon decided that he wanted to sell his cookbook. He fully resolved in his heart that he wanted to sell it, or even told two people (who are not Reuven) that he wanted to sell it. If in your view there is a difference between whether he told others or not, I’d be glad if you would mention and explain it.
The question is whether the acquisition takes effect.
I have a few thoughts and possible angles on the matter, but I’d first be glad to hear your opinion. Of course, if you have sharp sources on this issue, all the better.
Thank you very much!
Answer
If Reuven wants to sell, why shouldn’t Shimon acquire? Because Reuven doesn’t know Shimon and didn’t decide to sell specifically to him? As a matter of logic, that doesn’t seem important to me. Acquisitions are usually carried out from the buyer’s side, and on the transferor’s side, consent is enough. This is an acquisition without awareness. In the Talmudic topic of “despair without awareness,” they discuss separating terumah from a homeowner’s produce without his knowledge, and if later it becomes clear that he agrees, everything is fine.
Likewise with despair: according to Netivot HaMishpat, this is not ownerlessness but permission to acquire. And if the finder takes possession of a lost object after despair, this happens without the transferor’s awareness, only with his consent. True, there is a general consent here that allows anyone to acquire, but logically that does not seem different from a general desire to transfer ownership. And in “despair without awareness” there is a transfer without knowing to whom. That is already very similar to the general consent in the case at hand.
Discussion on Answer
I wrote what seems right to me, and I didn’t see any new arguments here. The buyer’s intent and the transferor’s intent are both required, of course. But the act is performed by the buyer.
There were avrekhim in my yeshiva who wanted to argue that in all the above examples—despair, separating terumah, and the unspecified case where he consents mentioned by the Shakh in Choshen Mishpat, sec. 358—what exists in reality now is that the act of acquisition effects the acquisition. Even if not with certainty, it’s at least not some absurd possibility. And that is what gives meaning to the act of acquisition.
But in our case, there is no expression or indication whatsoever of the transferor’s intent, except by force of a mistake. And in such a case, it isn’t an act of acquisition at all. It may be an act of pulling—and count as an act of theft or an obligation to return a lost object—but it is not an act of acquisition.
First of all, I think this is based on a few assumptions: (a) that the essence of the act of acquisition is an expression of the parties’ final intent. And that is a well-known dispute among later authorities (it is commonly said in the name of the Noda B’Yehuda and Rabbi Shimon Shkop that they say otherwise). (b) Even when the act is only on the buyer’s side (in pulling, the buyer does everything; the transferor could be asleep at that moment, for all practical purposes), the transferor’s intent is still expressed.
My main argument was about assumption (b)—after all, in pulling, the transferor’s intent truly is not expressed at all. They argued that if the transferor told the buyer to acquire by pulling, that itself is an expression of his intent, but I don’t agree—at the moment of pulling itself, you don’t “see” the transferor’s will at all. He could be asleep, for all practical purposes. So it is clear that there is no such deficiency in the act of acquisition by pulling—that it fails to express the transferor’s intent.
And this really isn’t so clear to me—if the whole essence of acquisition is the expression of final intent (assumption (a)), then what about the transferor’s intent? Seemingly, the transferor’s intent is not expressed at all in pulling. Why is it enough to express only the buyer’s intent?
And yet it seems obvious, apparently (or maybe not?), that the transferor’s intent and the buyer’s intent are both indispensable to the same degree.
Thank you!