1) HOW A "KINYAN CHALIPIN" IS ACCOMPLISHED
QUESTIONS: According to Levi, a Kinyan Chalipin is accomplished by the seller giving an object to the buyer. The Gemara explains that the pleasure that the seller receives as a result of the buyer's acceptance of his object causes the seller to have full intent (Gemiras Da'as) to transfer ownership of the second object to the buyer.
(a) The Gemara in Kidushin (7a) teaches that when a woman gives a present to a man who is an important person ("Adam Chashuv"), the pleasure that she receives from his acceptance of the present is worth a Shaveh Perutah and makes the Kidushin take effect. The Gemara in Kidushin clearly says that the woman becomes married only if she gives the present to an "Adam Chashuv" and not to an ordinary man. The Gemara implies that the woman receives no pleasure when an ordinary man who is not an "Adam Chashuv" accepts her gift. Why, then, does Levi consider the seller to be receiving Hana'ah even when he gives the object of the Chalipin to an ordinary person? (TOSFOS to Gitin 40a)
Moreover, if the mechanics of Chalipin, according to Levi, are based on the fact that the seller receives Hana'ah by giving an object to the buyer, then why should the seller not be able to accomplish a Chalipin by receiving an outright gift from the buyer? If the pleasure received when giving an object is considered enough to make him be Makneh, then the pleasure of receiving an object should certainly be enough to make him be Makneh!
(b) According to Rav, why must the seller receive an object? If the buyer is an "Adam Chashuv," it should suffice for the seller to give an object, since the seller receives pleasure by the buyer's acceptance of the object! If such a form of Hana'ah suffices to accomplish Kidushin, why should it not accomplish a Kinyan Chalipin? Even if there is some reason why it cannot accomplish a Kinyan Chalipin, it should work at least as Kinyan Kesef, since the buyer is giving the seller Hana'ah of value in return for the purchased item. At least with regard to land (which is acquired with Kesef), such a sale should take effect through Kinyan Kesef!
(a) The Rishonim disagree about whether the Hana'ah of Kinyan Chalipin that Levi discusses is the same as the Hana'ah that the Gemara in Kidushin discusses.
1. TOSFOS writes that according to Levi, the Chalipin can be accomplished only with the seller's object and not with the buyer's. Even though the seller receives Hana'ah when the buyer gives him an object, the Torah states that Chalipin must be done through the seller giving an object to the buyer. In a similar manner, the Torah limits Kinyan Chalipin to a Kli, and it does not allow coins, or objects that are not whole, to be used for Chalipin. This is true even according to Levi, even though the seller receives Hana'ah when he gives such objects just as he receives Hana'ah when he gives a Kli.
The RITVA here and in Kidushin explains this further. The fact that the seller must give an object to the buyer in order to make a Kinyan Chalipin is a Gezeiras ha'Kasuv, because the seller does not really receive a Hana'ah worth a Perutah from giving something to an ordinary person, as the Gemara in Kidushin teaches. When the Gemara says that according to Levi, the seller receives Hana'ah by giving, it is merely presenting a partial logical basis ("Ta'ama Ketzas l'Kra") for the law of the Torah.
The Ritva's intention might be that the Gemara is explaining only why Chalipin is not comparable to Kinyan Agav according to Levi. The main focus of the Chalipin is on what the seller receives. However, the Torah limits how the seller may receive this Hana'ah when a Kinyan Chalipin is made; he may receive this Hana'ah only by giving a Kli.
2. The words of RASHI (DH Mi Savart) imply that Levi maintains that the Hana'ah which the seller receives by giving is what actually accomplishes the Kinyan, and it is considered as though the seller has received an object. It seems from Rashi's words that Levi certainly would consider the Kinyan to be a Kinyan Chalipin when the buyer gives an object to the seller. TOSFOS RABEINU PERETZ cites some Rishonim who say this explicitly. TOSFOS in Gitin also cites this opinion in the name of Rashi here.
According to Rashi, why should Kinyan Chalipin work when the seller gives an object to a person who is not an "Adam Chashuv"? The RAN in Kidushin answers that Kidushin of a woman requires a Shaveh Perutah because it is disgraceful for a woman to become Mekudeshes with less than a Shaveh Perutah (as the Gemara in Kidushin (3b) says). A woman receives Hana'ah worth a Perutah only when she gives an object to an "Adam Chashuv." Chalipin, in contrast, can be done with a Kli even when the Kli is worth less than a Shaveh Perutah. This Hana'ah that the seller receives by giving is considered like a Kli, and therefore it can accomplish a Kinyan even though it is worth less than a Shaveh Perutah. That is why Chalipin can be done by giving an object even to a buyer who is not an "Adam Chashuv." (See (b) below, in the name of the Ketzos ha'Choshen.)
(According to Rashi, it is not clear whether Levi allows the seller to give any object for Chalipin, even a coin, or an object that is not a Kli or not whole, or whether Levi agrees that there is a Gezeiras ha'Kasuv which limits the manner in which the seller may receive Hana'ah from the buyer to giving certain types of objects.)
(b) The Rishonim also seem to disagree about whether Rav allows Chalipin or Kinyan Kesef to be made by having the seller give an object to a buyer who is an "Adam Chashuv."
1. The Ritva and Rishonim in Kidushin (7a) infer from RASHI there (DH v'Chen) that Rav does not consider it a Kinyan when a seller gives an object to a buyer who is an "Adam Chashuv." The Ritva explains that perhaps Rashi's reasoning is that giving to an "Adam Chashuv" provides the requisite Hana'ah only when the giving accomplishes a Kidushin. In such a case the Hana'ah the woman receives from the man's acceptance of the object combines with the Hana'ah she receives from the fact that the recipient agrees to be Mekadesh her, and it therefore accomplishes the Kinyan of Kidushin. In contrast, when a seller gives an object to a buyer, that Hana'ah alone -- that the buyer accepts the object -- is not enough to accomplish the Kinyan.
Another possibility is that Rav does not consider the Hana'ah that a person experiences when he gives an object to someone who accepts it to be comparable to the Hana'ah a person experiences when he receives a Kli, or even Peros. Rather, such Hana'ah (that someone accepted his object) is like an object which is not a complete entity unto itself ("Davar she'Eino Mesuyam"), and that is why it cannot accomplish a Chalipin. (If the buyer specifies that he wants the Hana'ah to be Koneh through Kinyan Kesef, perhaps it will be Koneh when the item that is being purchased is land. It is only when the buyer gives the seller Hana'ah in order to effect Chalipin that the Kinyan will not work.) Levi either considers the Hana'ah of giving to be like giving a Kli, or he does not require a Kli or a "Davar Mesuyam" (a complete object) to make a Kinyan Chalipin, according to Rashi (as mentioned above).
(The KETZOS HA'CHOSHEN (190:3-4) suggests that the Hana'ah of giving can be considered like a Kli only according to the RIF and others who maintain that anything which is lasting is in the category of "Kli." According to those who maintain that Rav Nachman allows Chalipin to be made only with a Kli, the Hana'ah of giving will not be able to effect a Kinyan. Consequently, according to Rashi -- who does not agree with the Rif (see Insights to 46:2) -- it is clear why the Hana'ah of giving cannot accomplish a Kinyan Chalipin according to Rav Nachman.)
2. The Ritva and other Rishonim, however, disagree with Rashi. They write that the Gemara in Kidushin implies that the Kinyan of the Hana'ah of an "Adam Chashuv" also works for monetary transactions. They explain that the Gemara here, which says that the buyer must give an object to the seller according to Rav, is discussing a buyer who is not an "Adam Chashuv," or a seller who does not specify that he wants the Hana'ah of the gift being accepted to accomplish the Kinyan.
It is possible that Rashi in Kidushin is consistent with his opinion here. Rashi learns that according to Levi, the Hana'ah that the seller receives when he gives the buyer an object is a full-fledged Hana'ah that is able to accomplish a Kinyan. Levi would agree that if the buyer gives the seller an object it will also effect a Kinyan. Hence, Rav Nachman, who argues with Levi, rejects the Kinyan of "Adam Chashuv" with regard to monetary transactions, since that is the Kinyan to which Levi refers. It must be that the pleasure of giving cannot accomplish a monetary exchange, according to Rav.
The Ritva and other Rishonim are consistent with their opinion that the Hana'ah to which Levi refers is not the same Hana'ah which the Gemara in Kidushin discusses, but rather the Kinyan is accomplished only by the Gezeiras ha'Kasuv. Hence, it cannot be proven from the Gemara here that the Hana'ah of "Adam Chashuv" cannot accomplish a Kinyan Chalipin (or Kinyan Kesef).
2) THE TEXT OF A SHTAR FOR A "KINYAN CHALIPIN"
QUESTION: The Gemara explains the phrase commonly written in Shtaros, "b'Mana d'Chasher l'Mikneya Bei." The word "b'Mana" ("with a utensil") teaches that a Kli must be used for Chalipin, in contrast to the view of Rav Sheshes who allows Peros to be used for Chalipin. The word "Bei" teaches that a coin may not be used.
RASHI (45b, DH Mai Ta'ama) writes that since a coin is not considered a Kli, it is not valid for Kinyan Chalipin according to Rav Nachman. The Gemara earlier introduces a different reason for why a coin may not be used ("Da'ata a'Tzurta...") only according to Rav Sheshes who permits the use of Peros for Chalipin.
According to Rashi, why is it necessary to write in a Shtar the word "Bei" to show that a coin cannot be used for Chalipin, if the word "b'Mana" -- which teaches that only a Kli may be used for Chalipin -- is already written in the Shtar? A coin is not a Kli, and thus the Shtar's text ("b'Mana") already excludes it from Chalipin! (TOSFOS to 45b, DH In. Tosfos disagrees with Rashi based on this question and writes that a coin is considered a Kli. See Insights to 46:2.)
(a) The PNEI YEHOSHUA, RASHASH, and MAHARAM SHIF (45b) explain that although Rashi does not consider a coin to be a Kli, nevertheless it resembles a Kli more than fruit does. Hence, if the Shtar said only "b'Mana," one might have thought that only fruit may not be used, but a coin, which is more similar to a Kli, may be used. The word "Bei" was added to teach that even a coin may not be used.
The Rashash adds that Rashi in Kidushin (28b, DH Basar Shor) makes a similar point about a live ox. Even though it is not considered a Kli, Rashi writes that it resembles a Kli more than food resembles a Kli.
According to this approach, Rashi is consistent with his opinion expressed elsewhere. Rashi (47a) implies that according to Levi there are no limitations as to what type of object may be used for Kinyan Chalipin (see previous Insight, answers (a) and (b)). Why, then, is it necessary to write in a Shtar "l'Mikneya" in order to exclude the opinion of Levi who allows Chalipin to be made by the seller giving an object to the buyer? It already says "b'Mana," which means that a Kli must be given, and the pleasure which a seller receives by giving something to the buyer is not a Kli! Accordingly, this pleasure of giving obviously cannot be used for Chalipin! The answer must be that although it is not necessary to explicitly state that the seller cannot give an object to the buyer as Chalipin, nevertheless it is written clearly in the Shtar so that people not mistakenly assume that Chalipin may be made in such a manner, and that the object discussed in the Shtar was transferred through such a Chalipin. This is known as "Shufra d'Shtara" (Bava Basra 69b) -- writing in a Shtar details that are not necessary for the enhancement of the document (to make it more clear).
The same may apply with regard to the word "Bei." Although it is written in the Shtar that a Kli must be used for Chalipin ("b'Mana"), people do not automatically assume that a coin is not a Kli. Therefore, it is written explicitly in a Shtar that a coin may not be used for Chalipin so that no one will be able to claim that the Chalipin of the object of the Shtar was done in the wrong manner.
(b) Another answer may be suggested based on the following question. Why are no words written in the Shtar to show that a "Davar she'Eino Mesuyam" may not be used for Chalipin? According to Tosfos and those who argue with Rashi, perhaps this is included in the word "b'Mana," which implies that not only must a Kli be used, but that a whole Kli -- and not a broken Kli -- must be used. Rashi may have learned that "b'Mana" does not exclude a broken Kli. A broken Kli, or a "Davar she'Eino Mesuyam," is excluded by the word "Bei." When the Gemara writes that "Bei" excludes a coin, it does not mean specifically a coin, but it means any object that is not a "Davar Mesuyam" -- even a Kli, since Rashi (45b, DH Mishum) learns that the reason a coin may not be used is because it is a "Davar she'Eino Mesuyam."
3) WHY "KESEF" IS NOT "KONEH"
QUESTION: The Gemara teaches that according to Rebbi Yochanan, the Chachamim instituted that Meshichah must be done to an object after money is paid for it because of fear that the seller will see a fire approaching the merchandise and will not make any effort to save the merchandise, since he stands to lose nothing if the merchandise is destroyed (since it already belongs to the buyer). The Chachamim reasoned that if the merchandise is considered the seller's property even after he receives money for it, he will make a great effort to save it. If it is not considered to belong to him, he will not make any effort to save it.
Why does the Gemara find it necessary to emphasize that if the merchandise is considered to belong to the seller, he will make a great effort to save it? The primary reason why the Chachamim enacted that money does not finalize the Kinyan was to protect the buyer. If the seller is considered the owner of the merchandise until the buyer takes physical possession of it and removes it from the seller's domain, the buyer will not lose if the merchandise gets destroyed, whether or not the seller makes an effort to save it. The Gemara should say simply that if the merchandise belongs to the seller, the buyer will not lose as a result of the destruction of the merchandise! (See PNEI YEHOSHUA.)
(a) The words of RASHI (DH Kach Tiknu) imply that the buyer may withdraw from the sale only while the merchandise is still in existence. After the merchandise has been destroyed, the buyer may no longer withdraw from the sale. (See BA'AL HA'ME'OR.)
Accordingly, it is possible for the buyer to lose even after the Chachamim instituted that money is not Koneh. If fire destroys the merchandise, the buyer cannot withdraw from the sale and he loses his money. That is why the Gemara emphasizes that the Takanah that money is not Koneh will solve even this problem, because it will motivate the seller to make great effort and attempt to save the merchandise from being destroyed in anticipation of a potential profit. (PNEI YEHOSHUA)
(b) The Pnei Yehoshua suggests further that this wording may have been chosen in order to explain why the Chachamim instituted that money is not Koneh according to Rebbi Shimon. Rebbi Shimon rules that the buyer may not withdraw from the sale; only the seller may withdraw. According to Rebbi Shimon, if the merchandise is destroyed, the buyer certainly will lose. The reason why the Takanah d'Rabanan helps the buyer is that it gives the seller an incentive to prevent the merchandise from being destroyed.