Rabbi Bleich on Kinyan
Frum attorneys, kiruv people, Partners in Torah mentors, law school profs – you need to see Rabbi Bleich’s latest contribution to Tradition.
Kinyan is a leitmotif of so many sugyos, but does not have an effective analogue in Western legal thought. “Conveyance” just doesn’t do it. When we try to teach people whose legal sensibilities are shaped entirely by Western law, we are often at a loss in explaining as fundamental a concept as kinyan.
We could explain, of course, that in Western law the point in time at which title passes from one party to another is a function of agreement between the parties. When no such agreement has been made explicitly, the law will figure out for the parties what they are presumed to have agreed upon, or what statute dictates. We will go on to explain that kinyan is much more than that, and has the feel of something substantive, a change in the nature of the object itself.
We would probably swallow hard, and call it a metaphysical change.
This is exactly what Rabbi Bleich does, although he does it better than most of us could imagine, in “The Metaphysics of Property Interests in Jewish Law: An Analysis of Kinyan.” (Full disclosure: I proudly consider myself a Rabbi Bleich groupie, and devour anything that he writes.) While Tradition’s website is accessible only by subscription, this article appears on the site of DePaul Law School where the paper was first delivered.
True to form, Rabbi Bleich won’t throw in a term like metaphysics without some deep consideration of the role of metaphysics in legal and moral thought, with the help of Plato and Kant. He contrasts Western concepts of ownership and its alienation with that of halacha, which sees kinyan is an ontological element. Significantly, he develops what he calls the Myth of the Tentacles, a way of analogizing the underlying metaphysics that is effective in explaining many different halachic sugyos. (I told Rabbi Bleich that I will from now on be unable to learn Bava Kama without thinking of an octopus.) He shows how this theory explains many halachic phenomena. In a remarkably succinct tour de force, he provides great review to many ideas in Choshen Mishpat: different kinyanim for different objects; kinyan geneivah; hefker; performance contracts and shibud;davar shelo ba le-olam; davar she-ein bo mamash; kinyan peiros.
In other words, if you ever find yourself tongue-tied in comparing and contrasting Western and halachic understandings in this area, simply give the other person this article and ask them to read it. It will not be easy reading; every line is laden with meaning, and the style is academic. This way, however, they will have to deal with feeling stupid, rather than you!
Is ontology in the context of R. Bleich’s article the same as the Brisker “chalos”?
[YA – Not the way we used it in yeshiva. Chalos is the vesting of an onotological entity called a kinyan. The kinyan needs to have ontological significance in order for chalos to apply to it; that ontological reality continues to exist beyond its chalos in the object.
I hope I’ve made myself obscure.]
Kinyan = a mechanism (or act) of aquisition of property (real or movable) – transferred from one person (or legal entity) to another.
If, for example, the chalos of eirusin has taken place, the ontological reality of ishus obviously continues past the maaseh kiddushin. I think that this is the case in every “chalos” – a change in status has been effected in a person or object which carries into the future. I don’t yet understand the nafka mina.
May this noetic discussion continue…
Kesiva Vechasima Tova.
[YA – Actually, your supposition is the subject of a yeshivishe chakira. This is the way I heard it. Someone asked Rav Boruch Ber about the true nature of kiddushin. Does kiddushin create a chalos of aishes ish that continues for the duration of the marriage (sorta what your position above would predict), or alternatively, does kiddushin initiate a change in which there is a new chalos of kiddushin every second of their married life? Reportedly, R Boruch Ber responded (perhaps not as a dispositive statement of what he felt), “Mazal tov, mazal tov, mazal tov, mazal tov….”]
Thanks Rabbi Adlerstein for pointing out that Rabbi Bleich’s article can be accessed at the De Paul Law Site. I have downloaded it, and look forward to reading – better, studying–it.
Sounds intriguing. This can have theological ramifications as well. We say, every day, in Shemoneh Esreh that Hashem is koneh ha kol. This likely derives from the verse in Ber. 14:19 where Malkizeek describes Hashem as koneh Shomayim va Aretz. I don’t think either means that Hashem did a maaseh kinyan on the world! Rather these phrases seem to imply an ontological, metaphysical reality, as R. Bleich suggests, which derive from Hashem as the Borei Olam. (How appropriate for Erev Rosh Ha Shanah!)
Kesivah Va Chasimah Tovah.
A very appealing conceptualization of the Halakha. It apparently also points to the need for extensions to the halakha to deal with certain modern economic issues adequately. The ontology implicit in the halakha as rabbi bleich conceptalizes it, does not appear adequate to deal with a some rights/obligations that are not that easily “attached” to an entity – either an existing asset or a person. Rabbi Bleich mentions this on page 22 (without judging the import or significance of these “lacunae.”) However, I suspect that in addition to extensions that are not possible without an adequate authority (a sanhedrin perhaps) that R. Bleich mentions, we may have to incorporate (just, secular,) non-halakhic rules, (as rishonim suggested in other contexts) to create a realistic and functioning beit din for economic matters. Not even close to my expertise areas; curious what others think.
Very interesting, thanks!!
Oh, there’s one typo:
“True to form, Rabbi Bleich won’t THROUGH in a term like metaphysics”
[YA – Thanks! Corrected]