Kinyanim Between a Jew and a Non-Jew

Rav Eliezer Cohen

Question: Do the same principles of kinyanim that apply in transactions between Jews also apply in deals between a Jew and a non-Jew?

Answer: The short answer is that yes, basic kinyanim would apply to transfer ownership in transactions between Jews and non-Jews; however, there is a disagreement amongst the Rishonim regarding which kinyanim work in such deals and which do not.

We said that cash payments don’t work to transfer ownership for moveable items; however, some opinions state that such payments would be a valid kinyan in deals between Jews and non-Jews. In fact, the opinion of Rashi is that only cash would work as a kinyan in deals between a Jew and a non-Jew, and other forms of kinyanim, such as meshicha (dragging the item into your possession) would not be valid. Rabbeinu Tam’s opinion is the opposite. He states that only kinyanim like meshicha would work in such transactions while cash would not.

Common market kinyanim such as situmta would work in transactions between Jews and non-Jews according to all opinions. So, in a practical sense, any practice that is customary to use in a specific place to transfer ownership would be a valid kinyan.

A common transaction between a Jew and a non-Jew where a kinyan is needed would be the sale of chametz before Pesach. Another common transaction discussed in the Torah is when a person has a first-born animal.

According to halacha, first-born animals are supposed to be given to a kohen, which cannot be done today. The Shulchan Aruch rules that the accepted procedure in today’s times is to sell a portion of the mother before the first-born is born to a non-Jew as a means of circumventing this problem. The Shulchan Aruch discusses what kinyan should be used and says that since there is a disagreement regarding what type of kinyan works in a deal between a Jew and non-Jew, one should do all types of kinyanim in order to fulfill all opinions.

For this reason, when we sell chametz to a non-Jew, we use all types of kinyanim. When discussing the sale of chametz in Hilchos Pesach, the Mishnah Berurah has an extensive list of almost all types of kinyanim and how they work.