Shabbat Parashat Vayigash 5774
P'ninat Mishpat: Looking for a Flaw in the Means of Obligation(from Mishpetei Shaul, siman 50 – a p’sak din by Rav Ovadia Yosef, Rav S. Yisraeli, Rav B. Zolty - 1979)
Case: The plaintiff (=pl) divorced his wife and obligated himself in significant alimony in an agreement that was finalized by a kinyan sudar (the lifting of an instrument) and with a document that stated it would be operative when the couple was living separately. Pl claims the kinyan is not binding because a kinyan sudar does not work for future obligations.
Ruling: In addition to the kinyan sudar, which does not work in the future, the document serves as a kinyan according to the “practice of society,” which is effective even for the future. Def claimed that the document cannot be used as a kinyan because according to one opinion in Bava Metzia 10a, if one intends to use an invalid kinyan (here, sudar), the valid kinyan that also existed does not work due to lack of intention. The context there is of one who wanted to acquire an ownerless item and fell on it, which according to that opinion eliminated the possibility of acquiring it through the kinyan of being within four amot.
Ostensibly, the Rama (Choshen Mishpat 268:1) and the Shach (ad loc.) accept the gemara’s other opinion, and therefore we do not say that the intention for one kinyan disqualifies the other kinyan. It seems that even the Rashba, who does say that the intention for one kinyan disqualifies another, would agree here. We have to understand the logic of disqualifying. Why don’t we say that he wants both kinyanim, and whichever one works should work (see Avnei Miluim 28:37)? There must be a distinction between two kinyanim that take place at the same time, in which case we say that he wants either kinyan to work as there is no contradiction between them, and kinyanim that take place one after the other. In the latter case, we can say that from the fact that he wants the later one to act as a kinyan, he must not intend the earlier one to be binding. In our case, when the document was signed, the kinyan sudar was already completed, and there is no reason to say that he does want the document to serve as a kinyan if the first kinyan, which he had hoped already worked, does not.
In truth, it seems that def’s entire assumption is incorrect. Actually, the kinyan sudar was to be binding immediately, as one can infer from the language of the document. The part that is in the future is not the agreement being binding, but the time until which the actual payments were to be delayed. The rule is that in general we assume that a kinyan is to take effect immediately, when it is effective, and not after time, when it is not (Rama, CM 195:5).
Another reason to validate the obligation is that it received beit din’s confirmation, as requested by the sides. In such a case, it is considered that it the agreement has the power of a compromise ruling of beit din, which would be valid even if it needed to work in the future or there were other problems to overcome.
Finally, it is apparent that the higher than usual obligation def accepted was because he wanted his wife to accept the get. In such a case, we say that she was acting as if she were a worker doing what she was asked to do (here, receiving the get). In such a case, the terms of the agreement of how much she would receive for her actions are binding without the need for any act of kinyan.
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