Minhag Hamedinah
Common Commercial Practice #30
Sale of Intangible Items
Q. Is there halachic basis for sale of futures, options, intellectual property, etc.?
A: Classic Halachah recognizes sale only of existing, tangible items, whereas future items (davar she’eino ba’olam), items not currently in the seller’s possession (davar she’eino birshuso) and intangible items (davar she’ein bo mamash) are not subject to sale (C.M. 209:4; 211:1; 212:1).
In places where the common commercial practice authorizes such sales, the Acharonim dispute whether Halachah also recognizes these as kinyan situmta, a form of acquisition based on the common commercial practice. Ketzos and Nesivos maintain that since such items are not subject to kinyan, situmta cannot be more effective than a regular kinyan (C.M., Ketzos and Nesivos 201:1).
However, Chasam Sofer (C.M. #66), in addressing the issue of purchasing franchise rights, rules that situmta applies even to such items, if that is the common practice (Pis’chei Teshuvah 201:2).
Many modern business contracts, including those mentioned in the question, follow the Chasam Sofer’s ruling (Pis’chei Choshen, Kinyanim 10:5[7]).
