Copyrights

3 02 2012

Based on a Naaleh.com shiur by Dayan Shlomo Cohen  

copyrights According to Jewish law one cannot buy a davar shelo ba l’olam (something that doesn’t exist or is intangible) because there is no gemirat daat (final comittment). If there’s no gemirat daat, one cannot make a kinyan (acquisition).

You can’t sell something that doesn’t exist yet because the buyer doesn’t know what he will get.

For example, if a deal is made on next year’s crops, the buyer can renege on it. However, once the supplier provides the crops, the transaction is valid because then there is gemirat daat and the kinyan has been finalized. If you buy a field together with the crops of the coming year, the sale is valid because you are acquiring the land that will produce next year’s crop.

Similarly, the poskim discuss a case of a cow and its unborn calf. The seller sold the cow along with the calf. By the time it was born, prices had changed and the seller realized he had sold it too cheaply. If there was a kinyan while the calf was in his mother, he can’t ask for more money. The price originally agreed upon is binding. However, if there wasn’t a kinyan, since it was a davar shelo ba l’olam, the seller can ask for a higher price.

Selling items that are still in a supplier’s warehouse is a problem in halacha because the seller doesn’t own it yet. There is no gemirat daat. Therefore, the deal is invalid and both sides can demand a different price later on. If the seller personally obligated himself to supply the items, he must do so when they comes into his possession.

Halacha dictates that custom can create gemirat daat. The buyer trusts the seller, even though he can’t supply the item right away. Since deals involving future commodities are made all the time, there is gemirat daat and the kinyan is binding.

According to halacha, if you buy a piece of land, the property belongs to you including its airspace above until the heavens. For example, if you bought a courtyard and someone on the third floor above your property wants to build, you may stop him. However, Jewish law teaches that where one person stands to gain and the other one doesn’t lose, “Kofin al middot sedom,” beit din can force him to allow the person to build. Where there is even a small loss, this principle does not apply and the person who wants to build has to pay for the building rights.

Although the Shulchan Aruch rules that copyrights and trademarks are intangible, the majority of poskim today maintain that you can own a copyright. In certain cases, a person who steals a copyright or trademark is considered a thief. Since trademarks and copyrights are commonly bought and sold, any deal involving these things is valid.

When you know what the assets are but you don’t know how much there are, the transaction is valid. If it turns out that there was much less than the buyer anticipated, he can make a claim that he was overcharged. If it turns out to be much more, the seller can claim he undercharged.

The halacha may seem that one who receives a mistaken gift from an inheritance can keep it, because you can only acquire what you know is there. However, with regards to an inheritance, you don’t need to make a kinyan. The moment the father dies, there’s an automatic transfer of ownership to the sons. Therefore, if a son gives someone a gift from an inheritance, not knowing its true valuable, it must be returned.

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Pure Money-Verbal Agreements #2

1 07 2011

Based on a Naaleh.com shiur by  Dayan Shlomo Cohen

Money Matters What constitutes ownership in Jewish law?  At what point is there a transfer of possession from seller to buyer?

Every transaction has several stages. The first is the final decision to buy, the second is when the buyer and seller come to a verbal agreement, and the third stage is paying for the item. The overriding rule in what causes a transfer of ownership is gemirat daat-a final decision that the buyer and seller will now proceed with the transaction.

Asking and comparing prices does not create an obligation to buy.  However, once the buyer makes a positive decision to purchase the item, our Sages say those who fear Hashem should stay true to their thoughts. Beit din will not take a stand if the buyer retracts at this point. However the next stage, when a verbal agreement is formed, creates an obligation. The Sages term buyers or sellers who retract at this level “mechusrai emunah“-unfaithful people. Beit din cannot force the buyer or the seller to keep his agreement, but the one who retracts is called a rasha and beit din will attempt to make him keep his word. If there is a fear of loss involved, then either of the parties may renege on the agreement.

There is an argument in the Shulchan Aruch and other Poskim whether a change in a situation allows a buyer or seller to go back on his word. The Shulchan Aruch rules that it makes no difference and each party must stand by his word. The Rema agrees with this. If either the buyer or seller dies, according to some opinions, his heirs should keep the agreement.

According to the Chasam Sofer, a change in a situation may allow a person to go back on an agreement but it does not apply to every change. Indeed Rav Wosner rules that one may nullify an agreement due to a significant change but not because of a small change. Overcharging 1/6th more than the market value, nullifies a sale. If it is less than 1/6 it is valid. If it is exactly 1/6, one must return the 1/6th and the agreement remains valid. The same holds true for the seller. If he finds out that he can now sell an item for 1/6th more he may go back on the agreement. If it is less than 1/6 he cannot.

Once an agreement is reached and it is written down and signed, there is an obligation to supply the goods and pay. A signature is considered a kinyan and obligates both the buyer and the seller. It is considered more severe than mechsurei emunah.

What happens if you make a verbal agreement with two people simultaneously? The stigma of mechsurei emunah can be removed by appeasing one side verbally or monetarily. You can sell to the second and appease the first or visa versa.

 Giving a gift also depends on gemirat daat. Telling someone you will give a gift doesn’t create a transfer of ownership.  A small gift creates an obligation. Offering a large gift doesn’t create an obligation because the listener does not believe you anyway. A rich uncle who promises his nephew a bike must stand by his word. On the other hand if he promises him a car, there is no obligation. A poor uncle who promises a bike is not obligated.  However if he promises him a small gift such as a book, he must keep his word.

 A decision to give to charity involves no change of ownership. However according to some Poskim, a final thought creates an obligation akin to a vow and beit din can force someone to keep it. Other Poskim disagree and maintain that thoughts do not create a vow.  All opinions hold that a verbal donation is a vow. Generally children cannot be forced to keep their parent’s vows to charity but it is fitting that they should.  If after a vow was made, the situation changes, the obligation can be nullified.  If you pledge tzedakah on the condition that someone will survive, and he does not, there is no obligation to honor the pledge. If you say, “In order that he should live,” one must follow through with the donation. The same way a debtor must pay his debts, one must keep one’s charity obligations even when it becomes financially difficult.

The Shulchan Aruch rules that one should not take charity from a married woman because she may not have her husband’s permission. Poskim today rule differently since times have changed and woman are more in charge of the home.

In the diamond exchange, a verbal agreement usually finalizes a transaction and the buyer and seller wish each other mazel u’bracha. In Jewish law, this is considered a final agreement and a transfer of ownership.