The Brauns had a fruit tree at the edge of their property that leaned almost entirely into the property of their neighbors, the Greens.
The Brauns had no interest in tending to the tree, and little interest in the fruit, which required a ladder.
On the other hand, Mr. Green greatly enjoyed tending to the tree. For years, the Brauns allowed Mr. Green to tend to their tree and pick its fruit.
“I was thinking of ways to celebrate my husband’s 50th birthday,” Mrs. Green said to Mrs. Braun. “I had a wild idea. He’s been tending to your tree for years, so would you let me buy it for him as a gift?”
“That’s a novel idea,” Mrs. Braun laughed. “Let me speak with my husband.”
“In practice, we have nothing to do with the tree,” Mr. Braun said. “Let that be our gift to Mr. Green!”
Mrs. Braun told Mrs. Green that they would grant the tree as their gift. Mr. Braun wrote a card: “To my dear neighbor, Mr. Green, we are happy to grant you our tree as a 50th birthday gift.” Mrs. Green put the card with the other birthday cards.
When Mr. Green read the card, he was greatly touched. He called Mr. Braun and thanked him profusely. He added: “If you agree, I would like to make a formal kinyan on the tree.”
“What do you suggest?” asked Mr. Braun.
“I’ll give you a dollar, which is kinyan kessef, as a token payment to effectuate the gift,” suggested Mr. Green.
“Take money?!” Mr. Braun replied. “It’s a gift! How can that work?”
Mr. Green called Rabbi Dayan and asked, “Can money be used to effectuate a gift?”
“The Mishna (Kiddushin 26a) teaches that real estate, including trees, can be acquired through kessef, shtar, or chazaka (money, sales document, or act of possession),” replied Rabbi Dayan. “A gift, to be binding, must also be effectuated in a valid manner” (C.M. 190:1-2; 193:1; 241:1).
“The Acharonim dispute the fundamental nature of kinyan kessef. Sma (190:2) and Avnei Milu’im (29:2) maintain that the money is compensation for the real estate, like the money Avraham paid to acquire Me’aras HaMachpelah. Although a minimal perutah suffices to effectuate the transaction, it serves as partial payment, and the balance remains a loan. However, a coin or bill not given as compensation, but rather as a symbolic act of transaction, is not a valid kinyan.
Taz (190:2) and Nesivos (190:2) disagree, and maintain that also money given as a symbolic act of kinyan can acquire. They bring proof from money given as kiddushin – also derived from a gezeirah shava (word parallel) to the acquisition of Me’aras HaMachpelah – which is not compensation of the woman’s worth.
Several Acharonim suggest that one practical ramification of this dispute is whether kinyan kessef is valid for a real estate gift. Presumably, according to the Sma, it is not, because there is no compensation; according to the Taz, it is, because giving money can still serve as a symbolic act (Imrei Binah, Kinyanim #1; Ha’amek She’ela, Vayechi #33; Divrei Yechezkel 39:4).
Indeed, the Rishonim dispute this matter. Rashbam (B.B. 44b, 136a) writes that kessef applies also to real estate gifts, whereas Tosfos (Avodah Zarah 71a s.v. pardeshani) indicates that it does not. Rambam (Hil. Zechiya u’Matana 3:1) and Tur (C.M. 241:1) also omit kessef in the context of gifts.
However, Tosfos Rid (Kiddushin 13a) writes that kessef is applicable to gifts, even though he seemingly understands the nature of kinyan kessef as compensation (see Avnei Miluim, ibid). Imrei Bina (ibid.) suggests that in such a case, the real estate is effectively ‘sold’ at the value of the token payment. Only if the recipient states explicitly that the token payment is not compensation for the property – only a symbolic act – would Sma and Tosfos Rid maintain that it is not valid.
“Thus,” concluded Rabbi Dayan, “effecting a real estate gift through kinyan kessef is questionable, unless the property is ‘sold’ at the value of the token payment, so that a different kinyan is preferable.”
Verdict: The Acharonim dispute whether kinyan kessef of real estate is compensation payment or can also be a symbolic act. Some link this to a dispute between the Rishonim whether kessef can effectuate a real estate gift, where there is no compensation.
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This article is intended for learning purposes and cannot be used for final halachic decision. There are also issues of dina d’malchusa to consider in actual cases.
