KIDUSHIN 27 - Dedicated l'Iluy Nishmas Reb Naftali ben Reb Menachem Mendel Bodner Z"L, by his wife Alice Bodner. A man who loved Chesed, Tuli Bodner applied his many talents to help everyone he knew in any way he could. His cheerful greeting is missed by all who knew him.
1) ACQUIRING A "SHTAR" THROUGH "KINYAN AGAV" OF A "CHAZAKAH" ON A FIELD
QUESTION: Rav Chiya bar Avin in the name of Rav Huna teaches that a Shtar which describes the sale of a field may be acquired through Kinyan Agav with the Chazakah which a person makes when he acquires the field. Such a Kinyan on a Shtar takes effect in the case described by the Mishnah in Bava Basra (167b). The Mishnah there teaches that a seller may write a bill of sale even though the buyer is not present. When the seller has written the Shtar but has not handed it over to the buyer, and the buyer makes a Kinyan Chazakah on the field mentioned in the Shtar, the buyer acquires the Shtar wherever it may be.
To what type of Shtar does Rav Huna refer? He cannot refer to a Shtar drafted as proof of sale, because such a Shtar is a "Shtar Mukdam" (a Shtar dated before the date of the sale) and is invalid. The Gemara in Bava Metzia (13a) teaches that when a lender writes a Shtar attesting to a loan which he has not yet given and the borrower is not present, the Shtar is invalid because it indicates that a loan took place at an earlier time than it actually did. Such a Shtar can lead to unlawful collection of property which others bought from the debtor after the date written in the Shtar but before the loan actually took place. The same concern exists in the case of a predated Shtar Mecher, a bill of sale: perhaps before the seller sells the field to the buyer mentioned in the Shtar, he will sell the field to another buyer with an ordinary Shtar. The first buyer will then come to Beis Din and claim that he purchased the field before the second buyer. He will show his Shtar to Beis Din as proof for his claim, and he will unlawfully confiscate the field.
Rather, Rav Huna must refer to a Shtar written for the seller under circumstances which prevent it from being a "Shtar Mukdam." These circumstances are the same circumstances which prevent a Shtar Halva'ah (deed of debt), written for the borrower in the absence of the lender, from being a "Shtar Mukdam," according to the Gemara in Bava Metzia (13a). The first of these circumstances is that the seller made a Kinyan (in order to give possession of the field to the buyer) at the time the Shtar was written. Since he actually transferred ownership of the field to the buyer at that time, the buyer rightfully may claim precedence over anyone else who may purchase the field at a later time. The second of these circumstances is that even if the seller makes no formal act of Kinyan to give the field to the buyer, according to Abaye the signatures on the Shtar itself (which make the Shtar valid) automatically accomplish the transfer of any possessions mentioned in the Shtar. Therefore, the buyer rightfully may claim precedence over anyone else who may purchase the field at a later time.
Presumably, these are also the circumstances in the case which the Gemara here discusses (the case in which a Shtar may be acquired through Kinyan Agav with the Chazakah made on the field). However, if this is the case, why is the Shtar transferred through Kinyan Agav when the buyer makes a Chazakah on the field? The buyer already owns the field, before the Chazakah is made on it (either because the owner transferred ownership to him when he wrote the Shtar, or because the signatures on the Shtar transferred ownership to him)! How can a Chazakah on a field which one already owns facilitate the acquisition of the Shtar through Kinyan Agav? (RAMBAN and other Rishonim)
(a) The MAGID MISHNEH (Hilchos Malveh v'Loveh 24:1) and the RAN (Bava Basra 167b; see also Chidushei ha'Ran to Bava Metzia, end of 19b) infer from the wording of the RAMBAM that the concern for "Shtar Mukdam" exists only when a Shtar Halva'ah (loan) is written in the absence of the lender, but not when a Shtar Mecher (sale) is written in the absence of the buyer. However, the Magid Mishneh writes that such a distinction lacks logical support. Why should there be no concern for a conspiracy between the seller and buyer in the case of a predated Shtar Mecher?
Perhaps there is no concern that the seller will sell his field to a second buyer after he has written a Shtar for the first buyer because the act of writing a Shtar Mecher publicizes the word that the field was sold and no one else will attempt to purchase it. In contrast, when a borrower writes a Shtar Halva'ah, although the word gets out that he has borrowed money and people will avoid buying his field (which is collateralized for the debt), if someone does buy a field from the borrower (perhaps at a lower price due to the risk that it will be collected for the debt) there is no reason to allow the lender to collect that field since the debt came into effect only after the field was sold.
Regardless of the reason for why there is no concern for the problem of "Shtar Mukdam" in the case of a Shtar Mecher, it is clear that according to the Rambam, the Gemara (which discusses a Shtar Mecher and not a Shtar Halva'ah) does not refer exclusively to a field which was already transferred to its new owner. When the purchaser makes a Chazakah, he takes possession of the field and the Shtar together (through Kinyan Agav).
(b) The RAMBAN and RASHBA suggest that although a Shtar may not be written for the seller until he actually transfers possession of the field (because of the problem of "Shtar Mukdam," and not as the Rambam rules), the Gemara here may refer to a Shtar written before the sale and entrusted with a third party (such as the witnesses) and not left in the hands of the seller. The seller tells the third party, "I have not yet decided whether I will sell this field today. If I do not sell it by the end of the day, destroy the Shtar (because it will be Mukdam). If, however, I decide to sell the field before the end of the day, the Shtar will be valid." Since the Shtar is in the hands of a third party, the seller cannot make a conspiracy with it by not destroying it at the end of the day and handing it over to the buyer six months later. In such a situation, the words of the Gemara clearly apply: the purchaser may make a Kinyan Chazakah to acquire the field before the end of the day, and when he does so he acquires the Shtar (which is in the hands of the third party) through Kinyan Agav.
(c) The Rashba in the name of "ACHERIM" explains that Rav Huna may follow the view of Abaye who rules that the "witnesses signed in a Shtar make the Kinyan." However, the Gemara in Bava Metzia says that even according to Abaye, the signatures alone do not transfer the possessions mentioned in the Shtar. Only when the Shtar is actually handed over to the recipient do the possessions become transferred retroactively from the time the Shtar was signed. If the recipient makes a Chazakah on the field before the transfer of the Shtar, he may acquire the Shtar through Kinyan Agav because he has not yet taken possession of the field. Once he acquires the Shtar, the principle of "witnesses signed in a Shtar make the Kinyan" takes effect, and he acquires the field retroactively from the time the Shtar was written.
The Ramban records the opinion of RABEINU CHANANEL, who explains that the same answer may be given even if Rav Huna does not follow the view of Abaye. Rabeinu Chananel writes that even if the seller transferred ownership of the property at the time he wrote the Shtar ("Shtar Aknayasa"), as the Gemara in Bava Metzia mentions, the transfer of the property takes effect retroactively only after the Shtar is given to the buyer. Rav Huna, therefore, may mean that before the Shtar is handed over the buyer may make a Chazakah on the field and acquire the Shtar through Agav -- and thereby retroactively take possession of the field (from the time of the Kinyan of the Shtar).
The SHITAH LO NODA L'MI suggests a similar answer but avoids the Chidush of Rabeinu Chananel. He explains that Rav Huna refers to a case in which the seller transferred ownership of the field to the buyer at the time he wrote the Shtar, but only conditionally. The seller explicitly stipulated that the Kinyan will take effect retroactively only from the time the buyer receives the Shtar.
According to this answer, why does the Chazakah on the field acquire the Shtar through Kinyan Agav? If the Chazakah acquires the Shtar, retroactively the field already belonged to him and thus the Chazakah was not a Kinyan!
Apparently, these Rishonim understand that the field becomes the possession of the buyer only "mi'Kan ul'Haba l'Mafrei'a." This means that the Kinyan takes effect from the moment that the condition is fulfilled, and although until that point it was not actually in effect, it is viewed from now on as if the Kinyan was always in effect (from the time the Shtar was written). (See Insights to Nedarim 52:1
The SEFER HA'MIKNAH avoids this question by explaining that the principle that the "witnesses signed in a Shtar make the Kinyan" applies only at the last moment of the day on which the Shtar was written, but not from the exact time of its writing. Rav Huna, therefore, may refer to a situation in which the buyer made a Kinyan Chazakah on the field before the end of the day. (Although, in either case, he would acquire the field and Shtar at the end of the day, a practical consequence exists in a case in which the seller dies or resells the field to someone else before the end of the day.)
Even if Rav Huna does not follow the view of Abaye, he may refer to a case in which the seller transferred the field with a Kinyan at the time the Shtar was written, and he stipulated that the Kinyan should take effect only at the end of the day. The Shtar is not a "Shtar Mukdam" and yet the buyer's Chazakah can acquire the field for him if he performs the Chazakah before the end of the day. (It is not clear why the Rishonim do not suggest these simple answers.)
(d) The RITVA here and in Bava Basra (77a) answers that the Shtar that is being transferred is not the deed of sale for the transaction between the giver and the recipient. Rather, it is the deed of sale with which the present owner originally purchased the field. When the present recipient makes a Chazakah on the field, he acquires through Kinyan Agav the Shtar with which the seller originally purchased the field. (The ownership of that Shtar is transferred to the new owner in order for the Achrayus of the original sale to remain in effect for the new owner.) The reason why the Gemara mentions that a seller may write a Shtar when the buyer is not present is to explain why the original deed of sale is still in the hands of the original buyer and not in the hands of the present buyer.