My computer crashed. Unfortunately, I had not backed up my files, so I brought the computer to a repair shop. The repairman took my computer and told me that my files would be ready in two days. Later that day a friend informed me that he has the necessary software to recover my files and will do it for free. I returned to the computer store and informed them that a friend would recover my files for free and took my computer that was still on the counter. The owner protested, claiming that once he received the computer for repair he is entitled to repair it for compensation.

Q: Is his claim correct that I cannot cancel the job?

A: The essence of the question is whether giving the computer to the repairman constitutes some sort of kinyan that makes the agreement binding. The same question arises if the repairman (uman) wishes to cancel the agreement (Erech Shai 333:5). There are three opinions regarding this matter.

Some maintain that once the repairman lifts the item he has made a kinyan on the object. Others contend that although he doesn’t have a kinyan on the object, accepting it is considered a kinyan of has’chalas melachah (beginning of employment), which is binding for employment agreements. The third opinion argues that it does not constitute any type of kinyan until he actually started to repair it.

Ritva (B.M. 76b) writes that once a repairman takes physical possession of the object, he has a kinyan in the object and the customer cannot renege on the agreement. Similarly, at that point the repairman may not cancel the agreement and refuse to make the repair (Nesivos 333:1, 10; Mabit 1:176).

Others disagree and argue that taking the object to repair does not constitute a kinyan in the actual object. Since the customer does not owe any money yet, the repairman also does not have a kinyan in the object to serve as security (mashkon) for the money that he anticipates earning (see C.M. 190:9). A borrower (sho’el) and renter (socher) acquire their rights upon taking physical possession of the object because they acquire the rights to use it (peiros). In contrast, a repairman does not acquire the right to use the object he will repair, and thus mere possession does not constitute a kinyan (Erech Shai, Y.D. 380:14; Machaneh Ephraim, Poalim 6). Some further assert that Ritva’s opinion represents a minority position (Ulam Hamishpat 333:1; Chazon Ish, B.K. 23:36).

Some contend that all opinions agree that taking the utensil constitutes the beginning of the repair (has’chalas melachah), which generates a binding agreement with an employee (Machaneh Ephraim, Chazon Ish, op. cit.). Other authorities maintain that the agreement becomes binding only when the repairman begins the actual repair and not when he takes possession of the object (Erech Shai, ibid.).

Moreover, there are Rishonim (Mordechai, B.M. 359) who write explicitly that handing the object to the repairman does not constitute any sort of kinyan and either party may renege on the agreement (Erech Shai, ibid.; Beis Shlomo, C.M. 63; Minchas Pitim 185:4).

[It should be noted that some maintain that the kinyan of has’chalas melachah occurs when the repairman has made at least a perutah’s worth of repair (Ohr Same’ach, Sechirus 9:4). Also, some authorities write that the has’chalas melachah is limited to day workers (poel/sechir yom) rather than contractors (kablan) (Avnei Nezer, C.M. 52; Nachal Yitzchak, 39:17)].

Due to the many types of disagreement, the one who has physical possession of the computer has the upper hand and could either demand payment (the repairman) or refuse to pay (the customer).