1) THE KINYAN OF "CHATZER" FOR "GENEIVAH"
QUESTION: The Gemara explains that Rebbi Yochanan and Reish Lakish both agree that the Chatzer of a Ketanah acquires a Get for her through the mechanism of "Yad." They argue about whether or not a Ketanah also acquires a Metzi'ah with her Chatzer. RASHI explains that according to Reish Lakish, the Kinyan of Chatzer for Metzi'ah is not learned from the Kinyan of Get. Her Chatzer acquires a Get only as a Shali'ach and not as a Yad, as the verse teaches, "Im Himatzei Timatzei" (Shemos 22:3). Rashi then asks, why does the Torah need to write that a person acquires a stolen object (Geneivah) through a Kinyan Chatzer, if Chatzer works through Shelichus? He answers that one might have thought that the principle of "Ein Shali'ach l'Devar Aveirah" prevents the Chatzer from acquiring the item for the thief, and therefore the verse is necessary.
Rashi seems to contradict himself. Rashi first writes that the source that a Chatzer acquires an object for an ordinary, monetary Kinyan is the verse "Himatzei Timatzei." This implies that one would not have reasoned that a Chatzer is a Shali'ach based on logic alone (since a Shali'ach must be a "Bar Da'as"; see MAHARAM). However, Rashi concludes that the only reason for why the verse mentions that a thief acquires through Kinyan Chatzer is to teach that the principle of "Ein Shali'ach l'Devar Aveirah" does not apply. This implies that it is not necessary for the verse to teach that Chatzer acquires like a Shali'ach, for one would have known that without the verse. (RASHASH)
Moreover, Rashi earlier clearly takes the second approach, that without a verse one would have known that a Chatzer works like a Shali'ach. (See Insights to 10:4, and MAHARSHA to Rashi here.)
(a) The GILYON (cited by the Shitah Mekubetzes) and the RASHASH explain that Rashi maintains that a verse is necessary to teach that a Chatzer is considered a Shali'ach (not as Rashi earlier writes). When Rashi writes that the verse teaches "Ein Shali'ach l'Devar Aveirah" does not apply, his intention is not to explain why a verse is necessary altogether, but rather his intention is to explain why the Torah chose to teach that Chatzer works through Shelichus in the case of Geneivah, as opposed to teaching it with regard to other cases of Dinei Mamonos. Rashi answers that it was written with regard to Geneivah to show that even for Geneivah, a Chatzer can be a Shali'ach and the rule of "Ein Shali'ach l'Devar Aveirah" does not apply.
This answer does not reconcile Rashi's words here with what he writes earlier, that a Chatzer works through Shelichus based on logic alone. Moreover, REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that if a verse would have been necessary to teach either that Chatzer works through Yad or that it works through Shelichus, then why would one have assumed that the verse of Geneivah teaches that Chatzer works through Shelichus? Perhaps it is teaching that Chatzer works through Yad! Even though the Gemara earlier indeed derives from the verse regarding Geneivah that Chatzer works through Shelichus according to Reish Lakish, nevertheless now that there already is a verse (regarding Get) which clearly teaches that Chatzer works through Yad, why should one assume that the verse regarding Geneivah is teaching that Chatzer works in a different manner? Perhaps that verse is teaching that Chatzer acquires through Yad for Geneivah just as it acquires for Get!
(b) Perhaps Rashi is consistent with what he writes earlier (10b) and still maintains that a Chatzer is considered a Shali'ach based on logic alone. Rebbi Akiva Eiger's question is not applicable since it is preferable to learn from the verse that Chatzer works as a Shali'ach for Geneivah (as there is logical basis as well). Although an Aveirah is involved, the verse teaches that in this case it is logically acceptable for a Shali'ach (such as a Chatzer) to accomplish an Aveirah on behalf of the owner.
What, then, does Rashi mean when he writes that the source that Chatzer works for Dinei Mamonos is the verse of "Himatzei Timatzei"? Rashi's intention is to explain why a verse is necessary for Dinei Mamonos if logic alone would have taught that a Chatzer can be a Shali'ach for Dinei Mamonos. Rashi is answering that although for Dinei Mamonos a Chatzer can be a Shali'ach, one might have thought that a Chatzer cannot be a Shali'ach for Geneivah, since it involves an Aveirah. (When the RAMBAN explains the words of Rashi, he asks why a verse is necessary to teach that a Chatzer can acquire for Geneivah, and he gives the same answer. This also is the way the PNEI YEHOSHUA explains Rashi here in his first explanation.)
2) PROOF THAT A "CHATZER" IS "KONEH" FROM THE LAWS OF "SHICHECHAH"
QUESTION: Rav Yehudah teaches that a "Sadeh she'Einah Mishtameres" -- a field that is not guarded -- can be Koneh an item for the owner only when he is standing next to his field. The Gemara cites proof for this from a Beraisa which discusses the laws of Shichechah. The Gemara understands that the Beraisa teaches that when a person hires workers to collect the sheaves of grain from the field and the workers forget to collect one of the sheaves, normally that sheaf becomes the property of the poor in accordance with the laws of Shichechah. However, the Beraisa qualifies this and says that if the owner of the field remembers the sheaf which the workers forgot, the sheaf is not Shichechah when the owner is standing next to the field, but when he is in the city (not near his field) the sheaf is Shichechah. The Gemara infers from here that when the owner is standing in, or adjacent to, his field, the field can be Koneh the sheaf for him, and therefore it does not become Shichechah. When the owner is in the city, the sheaf becomes Shichechah because the field cannot be Koneh for the owner (as he is not standing next to it).
The Gemara's comparison is difficult to understand. How can the laws of Kinyanim affect whether or not a sheaf becomes Shichechah? Crops that originally belong to the owner because they grew in his field are always able to become Shichechah! Nevertheless, when a person harvests his crops and forgets a sheaf, the Torah decrees that it becomes Shichechah and exits the ownership of the owner of the field! Why should the Kinyan Chatzer of the owner affect the Halachah of the sheaves that were forgotten by the workers, any more than it affects the Halachah of the sheaves that he forgot himself in a normal case of Shichechah?
Moreover, at what point does the Kinyan Chatzer of the owner take effect on the sheaves which the workers forgot? Before the sheaves become Shichechah, the owner cannot be Koneh them because they are already his. After they become Shichechah, he cannot be Koneh them because they are already the property of the poor people.
(a) RASHI (DH Ela Lav) seems to understand that the Gemara refers to a case in which the owner never forgot the sheaf, and it was only the workers who forgot it. When the Gemara says that the sheaf "was first remembered and then forgotten," it does no mean that the owner later forgot it. Rather, the owner realized that the workers might forget it (perhaps because it was in a remote part of the field), but he himself had it mind the entire time. The workers are the ones who forgot it when they collected the sheaves.
What difference does it make if the owner is standing next to the field or if he is in the city? Apparently, the difference is that when the owner is next to the field, he is viewed as the field's owner with regard to Shichechah. However, when he is in the city, the workers are viewed as the field's owner with regard to Shichechah.
The Gemara assumes that the reason why the actual owner is not viewed as the owner with regard to Shichechah when he is in the city is that he no longer is associated with the field with regard to Kinyanim. If an object of Hefker would fall into the field it would not become his through Kinyan Chatzer. On the other hand, when he is in, or adjacent to, the field, even though he is not actively collecting the sheaves, since the field can be Koneh an object of Hefker for him he is considered the owner with regard to Shichechah as well. Accordingly, when the Gemara says that when the owner is in the city "he is not near the field such that it could be Zocheh for him," it does not mean that the field cannot be Zocheh for him the sheaves that were forgotten, but rather it means that the field cannot be Koneh a Metzi'ah for him and therefore he is not considered the owner with regard to Shichechah.
(b) TOSFOS (DH Zachur) explains that the owner himself originally remembered the sheaf and later forgot it. Why should this sheaf be different from any other forgotten sheaf (such as when the owner is collecting the sheaves himself and he forgets one)? Tosfos answers that since the owner still remembered the sheaf even at the moment that the workers forgot it, he may acquire it for himself.
The RAMBAN and RAN explain this further. They write that when workers collect the sheaves for the owner, two requirements must be met in order for a sheaf to become Shichechah: the sheaf must be forgotten both by the owner and by the workers. When the sheaf is forgotten only by the workers but not by the owner, it enters a stage of half-Shichechah, wherein it leaves the possession of the owner but does not yet enter the possession of the poor people. At that stage, since the sheaf does not belong to the owner (since it has left his possession), he is able to acquire it through Kinyan Chatzer (since it is not yet the property of the poor people). If he acquires it at that point, the sheaf is prevented from becoming Shichechah.
(c) The RA'AVAD explains also that the owner himself eventually forgot the sheaf. Nevertheless, if the owner is in the field, his Kinyan Chatzer prevents the sheaf from becoming Shichechah. He explains this as follows.
Shichechah normally takes effect at the moment the owner turns away from the sheaf he forgot to collect. The reason for this is that the prohibition that describes the Mitzvah of Shichechah states, "You shall not return to collect it" (Devarim 24:19), which implies that the moment one turns away from it while collecting the sheaves, he may not go back to collect it, and it becomes Shichechah. Normally, a sheaf becomes Shichechah only when the owner does not remember it at the time he turns his back to it. The sheaf discussed in the case of the Beraisa does not become Shichechah because the owner remembers it at the time that he turns away, and only later does he forget it. At the time that he turns away -- since that is the point at which Shichechah normally takes effect -- a Kinyan Chatzer can "acquire" it for him. If, at that point, the sheaf is lying in a place in which the owner could have acquired it had it been Hefker, it is considered as though the sheaf is in his hand. A sheaf that a person is carrying in his hand cannot become Shichechah even if he later forgets it.
The Ra'avad's words are not clear. Why should a Kinyan Chatzer take effect on an object if it did not yet become Shichechah because he did not forget it? If a Kinyan Chatzer does take effect, it should take effect even if the owner does forget the sheaf at the time that he turns away!
Perhaps the Ra'avad means that when the owner remembers the sheaf when he turns away and later forgets it, Shichechah takes effect retroactively from the time that the owner turned away ("mi'Kan ul'Haba l'Mafrei'a," see Insights to Nedarim 52a). Therefore, at the time that the owner turns away, Shichechah begins to take effect, but it does not take effect completely until later when the owner forgets it. Since Shichechah started to take effect, it is removed from the owner's possession but is not yet in the possession of the poor people (as mentioned above in the name of the Ran), and therefore a Kinyan Chatzer can take effect on it to make as though it is in the hands of the owner. If the owner forgets the sheaf at the time he turns away, then he cannot acquire it through Chatzer since it has already become Shichechah and belongs to the poor people.
In any event, the Ra'avad concludes that if the owner is now in the city, and before he left the field he remembered the sheaf but forgot it after he came to the city, the field no longer can acquire objects for him through Kinyan Chatzer. Therefore, the sheaf is not considered to be in the hands of the owner, and Shichechah can take effect on it.