In the Torah portion of Chaya Sarah, Avraham Avinu acquires Me’aras HaMachpela from Ephron the Chitite, through payment of 400 shekels of pure silver.
This was the first formal acquisition of land made by the Jewish people in Eretz Yisrael from the Canaanites. This was followed by the acquisition of the outskirts of Shechem by Yaakov Avinu from the children of Chamor, in Parshas Vayishlach (Bereishis 33:19), and the acquisition of the Har HaBayis by David HaMelech from Aravnah the Jebusite (Shmuel II 24:24).
Indeed, the Midrash comments (Bereishis Rabbah 79:7, Vayishlach):
Rabi Yudan ben Rabi Simon said: This is one of three places that the nations of the world cannot taunt Israel saying, “They are stolen in your hands.” These are: Me’aras HaMachpela, the burial place of Yosef [Shechem], and the Beis HaMikdash [Temple Mount].
From the Chumash and Navi, it seems that the acquisition was consummated through the payment of cash alone.
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Avi was learning Gemara Bava Basra in yeshiva. “I’m troubled,” he told his rebbe, Rabbi Dayan. “There are two places in the tractate (B.B. 35b; 54b) that indicate that the purchase of real estate from a gentile is not completed with payment alone, without the additional writing of a sales document as proof of the sale.
“Could Rabbi Dayan please clarify this issue?”
“Payment of money is a valid form of kinyan for real estate between Jews,” replied Rabbi Dayan (C.M. 190-1-2).
“Minchas Chinuch (336:1) writes that mid’Oraysa, according to the written Torah, this is also true regarding acquiring real estate from non-Jews, as we find regarding the acquisition of Me’aras HaMachpelah through payment of money.
“However, our Sages stated (B.B. 54b) that mid’Rabbanan, according to the Oral Torah, the property does not fully enter the possession of the Jew without the additional writing of a sales document or deed. This is because people do not feel secure in the purchase from the non-Jew without written evidence of a document. This is similar to places where, even among Jews, the practice is to write a sales document in conjunction with payment, where the transaction is not consummated without additionally writing the document (C.M. 190:7; 194:1).
“Mishneh L’melech understands that also regarding a purchase from a non-Jew, both parties can retract until the document is written because there isn’t full intent for purchase without the document. However, Nesivos writes that the transaction is concluded vis-à-vis the non-Jew with the payment alone, so that the parties cannot retract, but the property does not fully become the Jew’s until he receives the document as well (Nesivos 194:2).
“Kessef Mishneh (Hil. Mechira 1:16) discusses whether the order makes a difference. He concludes that even if the Jew paid first and the non-Jew wrote the document afterwards, the Jewish buyer acquires retroactively from the time of payment, upon receiving the document.
“If the Jew stipulated that the sale should be consummated with payment alone without a sales document, Rema (C.M. 194:1) rules that this suffices, similar to the halacha between two Jews in a place in which it is customary to write a document, where they can still stipulate that the transaction is binding with payment alone (C.M. 190:7-8).
“However, several Achronim rule that payment to the non-Jew alone does not suffice, even if the Jew stipulated that it should, because we consider it self-evident that the buyer does not feel secure due to the seller’s untrustworthiness, or because the Sages did not sanction the purchase without a document (Shach 194:2, citing Bach; Taz 194:1; Nesivos 194:3; Gra 194:1-2; but Ketzos 194:2 supports Rema).
“Nonetheless,” concluded Rabbi Dayan, “if the law of the land is that payment suffices to consummate the transaction, it is binding based on dina d’malchusa” (C.M. 194:2).
Verdict: Payment of money is a valid kinyan of real estate mid’oraysa also when acquiring from non-Jews. However, the Sages declared that the property does not enter the Jew’s possession fully until he also receives a sales document from the non-Jewish seller, unless the law of the land states otherwise.
