KIDUSHIN 26 (5 Cheshvan) - Dedicated in honor of the fourth Yahrzeit of Reb Naftali ben Reb Menachem Mendel (Tuli Bodner) Z"L, an Ish Chesed and Ish Ma'aseh radiating joy, whose Ahavas Yisrael knew no bounds. Dedicated by his son, Mordechai Bodner of Givat Mordechai, Yerushalayim.
1) THE KINYAN OF "HAGBAHAH"
QUESTIONS: The Gemara explains that one accomplishes a Kinyan of Hagbahah not only by physically lifting the object but even by merely causing it to rise. Accordingly, one may acquire an elephant with Hagbahah by guiding it to stand on bundles of branches so that its feet are raised three Tefachim above the ground. According to RABEINU MESHULAM (cited by TOSFOS, DH Iy Nami), the Gemara means that one acquires the elephant with Hagbahah by dangling food in front of it so that it lifts itself off of the ground.
The ability to acquire an object with an indirect act of Hagbahah is one of the essential differences between the Kinyan of Hagbahah and the Kinyan of Chatzer (or Yad). The Torah teaches that a person acquires an object placed into his hand or courtyard ("v'Nasan b'Yadah," Devarim 24:1; Gitin 77a). If a person acquires an object through the Kinyan of Yad merely by grasping it in his hand without lifting it up, what is the need for the Kinyan of Hagbahah? (Hagbahah is a Kinyan d'Rabanan according to Rebbi Yochanan, and a Kinyan d'Oraisa according to Reish Lakish. See RAMBAN, RITVA, and RAN to 25b, and the RAMBAM in SEFER HA'MITZVOS #245.)
The answer is that the Kinyan of Hagbahah enables a person to acquire an object without even touching it but merely by causing it to be lifted. In such a case, Hagbahah is effective where Yad is not.
(a) Before the Gemara suggests that one may use Hagbahah to acquire an elephant, the Gemara assumes that one must perform Hagbahah by actually lifting the item. At that stage of the Gemara, how does the Gemara understand the need for a separate Kinyan of Hagbahah? Whenever a person lifts the object in his hand he acquires it through Yad, and the Kinyan of Hagbahah is not necessary.
Moreover, the Gemara earlier (22b) teaches that a person who lifts an Eved Kena'ani does not acquire the Eved (according to the Tana Kama). However, one may acquire an Eved Kena'ani through Kinyan Chatzer (as one may acquire even land through Kinyan Chatzer; see RASHBA to Gitin 21b). Since Kinyan Chatzer is an extension of Kinyan Yad (see Gitin 77a), why should one not acquire the Eved (through Kinyan Yad) when he lifts him? (NESIVOS HA'MISHPAT 196:2)
TOSFOS in a number of places (see Tosfos here; Bava Kama 29b, DH Ela; Eruvin 79b, DH Tzarich) proves that one acquires an object through Hagbahah by lifting it only one Tefach. He proves this from the Gemara in Eruvin (79b) which states that lifting the barrel of wine used for Shituf Mavu'os one Tefach from the ground suffices to effect a Kinyan on the barrel on behalf of the residents of the Mavoy. Why should it be necessary to perform Hagbahah on the barrel altogether? The moment he grasps it he should acquire it through the Kinyan of Yad.
(b) RASHI writes in a number of places (see Rashi here, DH b'Chavilei) that Hagbahah involves lifting an object at least three Tefachim above the ground. Due to this requirement, Rashi concludes in Kesuvos (31a, DH d'Iy Ba'i Gachin) that when a person eats someone else's forbidden Chelev by lifting it less than three Tefachim and placing it in his mouth, he does not acquire the Chelev with Hagbahah before he actually eats it. Why, though, does he not acquire the Chelev through the Kinyan of Yad as he holds it in his hand (or mouth) even within three Tefachim from the ground? (TOSFOS to Kesuvos 31a, DH d'Iy Ba'i, and 31b, DH Rav Ashi)
Although Rashi there (Kesuvos 31b, DH ked'Rava; see MAHARSHA 31a) seems to understand that the Amora'im disagree about this point and, according to Rava, an object in a person's hand below three Tefachim is acquired through Hagbahah, he nevertheless addresses only Kinyan Hagbahah and not Kinyan Yad. Why does the person not acquire the Chelev through Kinyan Yad?
(c) The Gemara in Gitin (21a) teaches that a man may divorce his wife by placing a Get into the hand of his Eved and transferring ownership of the Eved to his wife. She becomes divorced because of the principle, "Gitah v'Yadah Ba'in k'Echad," the Get and ownership of the Eved come into her domain simultaneously. The Gemara adds that the woman acquires the Get only if the Eved is shackled. If he is not shackled, he cannot acquire the Get for her through Kinyan Chatzer because he is a "Chatzer that walks" and he is "not guarded by her" but by himself. However, since the law is that everything an Eved receives belongs to his master (23b), why should the woman not be divorced? When the Eved lifts up the Get he should acquire it through Hagbahah even if he is not shackled. Since the husband transferred ownership of the Eved to the woman, the Eved's Hagbahah should acquire the Get on behalf of the woman! Why does the Eved need to function as a Chatzer to acquire the Get on behalf of the woman through Kinyan Chatzer (such that if he is not tied up, the Kinyan Chatzer is not effective)? (NESIVOS HA'MISHPAT 188:1)
(a) All of these questions indicate that even when a person lifts an object with his hand, his act does not necessarily constitute a Kinyan of Yad. The NESIVOS HA'MISHPAT (198:5, 268:2) writes that Kinyan Yad is effective only when an object is entirely inside or above the hand. An object which is held in the hand but which protrudes over the sides of the hand is not
acquired through Kinyan Yad, but only through Kinyan Hagbahah. He compares lifting an object in such a way to an object which rests partly inside a Chatzer and partly outside; in such a case, the object is not acquired with Kinyan Chatzer. (See Insights to Gitin 78:1
.) Accordingly, one who lifts an Eved or a barrel does not acquire it through Kinyan Yad. (See the Nesivos ha'Mishpat in 196:2, where he suggests another answer for why the act of lifting an Eved is not an effective Kinyan Yad.)
This assertion of the Nesivos is questionable. The source in the Torah for the Kinyan of Yad is the verse, "v'Nasan b'Yadah." The verse implies that the woman acquires the Get and becomes divorced when the man places it in her hand, regardless of whether part of the Get protrudes over the side of her hand.
Moreover, the Nesivos ha'Mishpat's comparison to an object which rests partly inside a Chatzer and partly outside is imprecise. In that case, the reason why Kinyan Chatzer is not effective is that part of the object rests in the domain of another person, which prevents the recipient's domain from acquiring it. In contrast, when the object rests entirely in the domain of the recipient (and merely hangs over someone else's domain), his domain should acquire the object for him.
Perhaps another reason may be suggested for why one does not acquire an Eved or barrel through Kinyan Yad by lifting it. An object which is too heavy for one hand to lift remains in the hand only because of the pressure applied by the second hand to keep the object from falling. When the second hand assists the first hand in such a manner, the object cannot be said to be "resting" on the person's hand, just as an object which hangs from a nail in the wall cannot be said to be "resting" on the nail (or on the wall). Since the nail alone does not provide full support of the object, the owner of the nail cannot acquire the object through Kinyan Chatzer. Similarly, Kinyan Yad is effective only when the object rests on the hand.
(b) The KOVETZ SHI'URIM in Kesuvos (31b) addresses the second question. Why does Rashi state that a hand within three Tefachim from the ground does not acquire an object placed inside of it? The Kovetz Shi'urim suggests that the verse "v'Nasan b'Yadah" may refer only to when the woman's hand is above three Tefachim from the ground.
TOSFOS there (31a), however, appears to preempt this answer by citing the Gemara in Gitin (78a) which states that when a basket is tied to the woman by a string, it serves to acquire the Get for her through Kinyan Chatzer. Even though the basket alone cannot acquire the Get through Kinyan Chatzer because it rests on the property of the husband, when the basket is tied to the woman a Get placed inside of it is considered to have been placed directly into the woman's hand. The Gemara there implies that a basket tied to the woman does acquire the Get for her, through Kinyan Yad, even when it is within three Tefachim from the ground. If a basket tied to her acquires the Get for her even when it is within three Tefachim from the ground, why should her hand not acquire the Get for her when it is within three Tefachim from the ground?
Perhaps Rashi understands that the reason why one's hand, when within three Tefachim from the ground, does not acquire an object through Kinyan Yad is as follows. The Gemara in Gitin discusses whether the vessel of one person (the buyer) acquires for him even when it rests in the domain of another person (the seller). If it does
acquire for him, the woman's basket should acquire the Get for her even when it is not tied to her but it is resting in her husband's domain. If it does not
acquire for him, the woman's basket must be tied to her in order to acquire the Get for her. When the basket is tied to the woman, the husband does not mind that the basket rests on his property (just as he does not mind that his wife sits there), and therefore the vessel of the woman acquires for her even when it is in the domain of the husband. (See Insights to Gitin 78:1
Accordingly, Rashi's comment in Kesuvos -- that one's hand under three Tefachim in someone else's domain cannot acquire an object -- does not follow the opinion that the vessel of the buyer can acquire for him in the domain of the seller. That opinion certainly would rule that the buyer's hand is no different from his vessel and acquires any object placed into it, even though it rests in someone else's domain. In contrast, according to the opinion that the vessel of the buyer cannot acquire in the domain of the seller, the buyer's hand is no different from his vessel; when in someone else's domain, it cannot acquire through Kinyan Yad even when it is higher than three Tefachim from the ground. Nevertheless, when a husband gives his wife a Get, she does acquire it through Yad even when she is in his domain, because the husband does not mind that his wife stands on his property (at least on the area immediately beneath her; Gitin 78a).
When Rashi in Kesuvos writes that one's hand does not effect a Kinyan Yad when it is below three Tefachim, he does not refer to a woman's acquisition of her Get but rather to a thief who steals a piece of Chelev. In the case of theft, the owner of the object certainly minds that the thief is standing on his property! The thief cannot acquire the object with Kinyan Yad unless he leaves the domain of the owner. Accordingly, the thief must lift the object at least three Tefachim high in order to acquire it (through Hagbahah) while he stands in the domain of the owner.
(c) A Get placed into the hand of the wife's Eved cannot take effect through the law of "Mah she'Kanah Eved, Kanah Rabo" (everything an Eved receives belongs to his master), because such a Kinyan does not qualify as "v'Nasan b'Yadah," placing the Get in the hand (or property) of the wife. Only when the Eved is considered a Chatzer of the wife (i.e. he is tied up and cannot walk, and he is protected only by her) can he acquire the Get for her.
The Nesivos ha'Mishpat (ibid.) asks, however, that if the wife instructs her Eved to pick up the Get for her, his act should be considered "Hagbahah mi'Kochah" and it should acquire the Get for the woman (just as one acquires an elephant with Hagbahah by causing it to walk to a raised area).
The Nesivos ha'Mishpat answers that acquiring a Get through Hagbahah is not a sufficient form of Kinyan for divorce. Hagbahah does not qualify as "v'Nasan b'Yadah." Only her Yad or Chatzer can acquire a Get for her in the manner which the Torah requires. (See TOSFOS to Gitin 21b, who implies that a woman can acquire a Get through Meshichah, and see Acharonim there.)
2) THE REQUIREMENT OF "TZEVURIM"
QUESTION: The Gemara discusses whether Metaltelin (mobile property) acquired through Kinyan Agav must be "piled" ("Tzevurim") on the land through which it is being acquired, or whether the Kinyan takes effect even when the Metaltelin are situated somewhere else.
Why does the Gemara entertain the possibility that the Metaltelin must be resting on the land in order to be acquired through Kinyan Agav? If it must be resting on the land, the buyer acquires it through Kinyan Chatzer (and Kinyan Agav is not necessary). Kinyan Agav is necessary only when the Metaltelin are not resting in the Chatzer. (RITVA)
(a) The RITVA explains that the Chatzer with which the person makes the Kinyan Agav is "Einah Mishtameres," it is not protected. Therefore, it cannot acquire the Metaltelin through Kinyan Chatzer, and Kinyan Agav is necessary even though the Metaltelin are resting on the land.
The answer of the Ritva does not seem to conform with all of the opinions mentioned in the Gemara in Bava Metzia (11b). The Gemara there discusses whether a Chatzer which is not protected can acquire objects through Kinyan Chatzer. Ula and Shmuel rule that such a Chatzer cannot acquire unless the Chatzer's owner is present (and thus it is guarded). Rebbi Aba attempts to prove that the Chatzer acquires the object even when the owner is not present. He cites the incident (which the Gemara here cites as well) involving Raban Gamliel and the Zekenim who were traveling together on a boat. Rebbi Aba assumes that the Zekenim who accompanied Raban Gamliel acquired the Ma'aser and Ma'aser Ani from him through his Chatzer which he leased to them, even though the Chatzer was not guarded. The Gemara there refutes this proof in two ways. The Gemara ("ha'Hu me'Rabanan") suggests that the Zekenim acquired the Ma'aser through Kinyan Agav and not Kinyan Chatzer. Rav Papa refutes the proof by saying that a Chatzer which is not guarded is an effective Kinyan Chatzer for a gift (because someone consciously gives the object to the recipient -- "Da'as Acheres Makneh"), just like the gift Raban Gamliel gave to the Zekenim; it is not an effective Kinyan Chatzer for an object of Hefker.
The Ritva's explanation is consistent with the first answer in Bava Metzia which maintains that even when someone gives a gift ("Da'as Acheres Makneh"), a Chatzer which is not guarded cannot acquire the gift for the recipient. The only way the Zekenim could have acquired the Ma'aser (which was resting in a Chatzer which was not guarded) was through Kinyan Agav. However, according to Rav Papa's answer, the Zekenim were able to acquire the Ma'aser resting in their Chatzer through Kinyan Chatzer even though the Chatzer was not guarded.
Every case of Kinyan Agav is, by definition, a case of "Da'as Acheres Makneh," because Kinyan Agav requires that a giver tell a recipient to acquire the object through Kinyan Agav (as the Gemara on 27a says). If, however, Agav requires "Tzevurim," the recipient should always acquire the Metaltelin through Kinyan Chatzer and there should be no necessity for Kinyan Agav.
Apparently, the Ritva means that the Gemara here does not accept the opinion of Rav Papa that one can give a gift to a recipient by placing it in a Chatzer which is not guarded. The Gemara here maintains that the only way to acquire an object resting in an unprotected Chatzer is through Kinyan Agav. Therefore, the Gemara asks whether Kinyan Agav requires "Tzevurim" or not, and it does not assume that if the Metaltelin are "Tzevurim" that one acquires them through Kinyan Chatzer.
Rav Papa, on the other hand, certainly maintains that the Metaltelin do not need to be resting on the property in order to be acquired through Kinyan Agav. (This is also the way the Gemara here concludes.)
(b) The SHITAH LO NODA L'MI cites the "BA'ALEI TOSFOS" who write that the reason why Metaltelin piled in a Chatzer cannot be acquired through Kinyan Chatzer is that Kinyan Chatzer is effective only for an object which entered the Chatzer after the Chatzer became the property of the buyer. It is not effective for an object which was in the Chatzer before it became the recipient's property. The original source for this explanation may be the TOSFOS CHITZONIYOS cited by the SHITAH MEKUBETZES in Bava Metzia (end of 25b, and quoted by the KETZOS HA'CHOSHEN 198:2 and the MACHANEH EFRAIM, Hilchos Kinyan Chatzer #13) who give this answer. The HAGAHOS ASHIRI there also mentions this distinction.
The Ketzos ha'Choshen and Machaneh Efraim question this distinction based on the Gemara in Bava Metzia, where Rav Papa clearly says that the Zekenim acquired the Ma'aser from Raban Gamliel through Kinyan Chatzer, even though Raban Gamliel gave them the Chatzer after the Ma'aser was already resting there.
Apparently, the Tosfos Chitzoniyos also assumes that the question of the Gemara here does not conform with the opinion of Rav Papa, but rather with the first opinion in the Gemara in Bava Metzia (that the Zekenim acquired the Ma'aser with Kinyan Agav). The Tosfos Chitzoniyos suggests that not only does that opinion disagree with Rav Papa and maintain that a Chatzer which is not guarded cannot effect a Kinyan Chatzer, it also maintains that any object which enters the Chatzer before the recipient buys the Chatzer is not acquired through Kinyan Chatzer. That is why objects piled there ("Tzevurim") can be acquired only through Kinyan Agav and not through Kinyan Chatzer (according to the possibility that "Tzevurim" is necessary).
The Acharonim question the approach of the Tosfos Chitzoniyos from another Gemara. The Gemara in Gitin (21a) teaches that when a man places a Get in the hands of his servant and then gives the servant to his wife as a gift, she becomes divorced because of the principle of "Gitah v'Yadah Ba'in k'Echad." The Gemara clearly understands that the woman acquires the Get even though it was in the Eved's hand before the Eved became her property. Apparently, the Tosfos Chitzoniyos understands that the Gemara there follows the opinion of Rav Papa (and the way the Gemara here concludes) -- that Kinyan Agav does not require "Tzevurim." Accordingly, an object which is "Tzavur" and resting in the Chatzer (or in the hands of the Eved) is acquired through Kinyan Chatzer and does not need Kinyan Agav.
Even if Kinyan Agav is effective only when the Metaltelin are "Tzevurim," there exists another difference between Kinyan Agav and Kinyan Chatzer. The RITVA
and TOSFOS RID
here (27a) write that when one transfers ownership of an object through Kinyan Agav, the land and its mobile contents are transferred simultaneously. However, when the recipient acquires the Metaltelin with Kinyan Chatzer, he first must acquire the Chatzer and only afterwards does he acquire the Metaltelin. (See CHASAM SOFER OC
117, DH Mah she'Kasuv Ma'alaso. See Insights to Gitin 77:3
(The following case demonstrates a practical difference between Kinyan Agav and Kinyan Chatzer. Reuven sells land to Levi, but Levi has not yet made a Kinyan on the land. Resting on the land are Metaltelin, which Reuven sells to Shimon with the condition that Shimon will acquire it only at the moment that Levi makes a Kinyan on the land (on which the Metaltelin rests). Reuven then instructs Levi to make a Kinyan on the land and thereby acquire the Metaltelin (that is, the Metaltelin which he has already sold to Shimon). If Levi's Kinyan of the Metaltelin constitutes Kinyan Chatzer, then only after the land (Chatzer) has become his can it acquire the Metaltelin for him. However, at the same moment that he acquires the land, Shimon becomes the owner of the Metaltelin because of Reuven's stipulation, and thus Levi cannot acquire it a moment later. In contrast, if Levi's Kinyan of the Metaltelin constitutes Kinyan Agav, then his Kinyan on the Metaltelin occurs at exactly the same moment as Shimon's Kinyan, and thus they divide the Metaltelin between them.)