Choice (Un)Limited?

Question

The Jewish Camp Housing Association built three adjoining apartment blocks.
The Spitsbergen chassidim were interested in buying one of the buildings
for their Rebbe and his closest followers. They agreed on a price and
were ready to sign a sales contract. However, since they had not yet made up
their mind which building to purchase, they left the identity of the purchased
block open in the signed contract. In order to ensure their continued right
of choice, the chassidim made a kinyan suddar (act of acquisition,
usually performed by means of exchanging a handkerchief, etc.) on this right
with the Housing Association. When they finally made up their mind and opted
for Block No.3, they were told that only Nos. 1 and 2 were available. The
chassidim
were very upset, arguing that the kinyan they had made
gave them an irrevocable free right of choice. Are they right?


Answer

Two partners own a small courtyard. Even though the courtyard
is too small to be usefully divided, they decide to build a dividing wall down
the middle. In Tractate Bovo Basro (3a), our Sages question whether such
an agreement is binding. Rebbi Yochanan argues that if the parties
made a kinyan (suddar) on the agreement, it is binding. Our Sages
respond that such a kinyan has no validity. It is a kinyan devorim,
without substance. Rashi explains that a kinyan suddar is only
effective if some tangible item is thereby transferred. Land or movable goods
can be sold or given as a gift by this medium, but not an intangible undertaking,
such as agreement to divide property.

The Emek HaMishpot (1:4) cites the words of the
Shach
(66, Note 2) as further proof that a kinyan on an intangible
undertaking is ineffective. He discusses the case of a group of people who hired
a contractor to construct a building on their behalf. The Tur (157:20)
writes that the kinyan made between the parties is effective and the
contractor is bound by such an agreement. It is not considered a kinyan devorim.
The Remah qualifies this statement, arguing that the kinyan is
only valid if it creates an obligation on the contractor in person (shibbud
haguf
) or his money. However, if its purpose is only to reinforce an intangible
obligation to build, it is not binding. Once again we see that such a kinyan
is only valid if it takes effect on a tangible item, such as a person or money.
If all that it does is to back up an intangible undertaking, it has no validity.

The Emek HaMishpot also quotes the B'nei Chaye
(to Choshen Mishpot 212), in the name of the Rash HaLevi, who
states that a person can only transfer a tangible item to someone else by means
of a kinyan, whether it be a gift or a sale. If a person makes a kinyan
that he is giving the right of choice to someone, this is considered to be a
kinyan devorim. There would therefore be no problem for one who made
such a kinyan to change his mind and retract. (See also Oruch HaShulchan
60:11 and 212:2, who points out that a personal undertaking to transfer ownership
of an item which does not yet exist is binding. Contrary to our case, the item
in question will be tangible once it comes into existence. The right to choose
is never tangible.)

We can therefore conclude that the Housing Association is
not obligated to allow the Spitsbergen chassidim free choice, since the
kinyan which was meant to have given them that right is invalid. The
kinyan was supposed to take effect on the right to choose. Since this
right is intangible, it can not be transferred by such means.