Mechirah - Chapter 3

With regard to business matters, our Sages have the authority to overrule Scriptural Law when they feel it is necessary. As reflected by the principle, hefker beit din, hefker, the Torah granted them the authority to establish the norms of business activity. In this instance, they made their decisions because of the rationale stated in Halachah 5.

See Chapter 5, where the Rambam states that movable property can be acquired through chalifin - the exchange of goods - and thus through a kinyan sudar - the lifting up of a handkerchief

Some opinions maintain that the article must be lifted up three handbreadths, while others maintain that one handbreadth is sufficient [Shulchan Aruch (Choshen Mishpat 198:2)].

As the Rambam proceeds to illustrate in the following halachah, if a substa11ce is commonly lifted up, the only way that a person can acquire it is by lifting it up. This position is accepted by the Shulchan Aruch (Choshen Mishpat 198:1).

The Rambam’s ruling is quoted by the Shulchan Aruch (ibid.). The Tur and the Ramah differ and maintain that since in this instance, it is far more difficult to untie the binding and lift each piece of wood individually, it is acceptable to acquire the entire load as a unit through meshichah.
The Ra’avad offers a different interpretation of Bava Batra 86b, the source for this halachah. His interpretation leads to the following conclusion: If a person strains himself and lifts up the entire load at once, he acquires it.
(The Ra’avad does not, however, object to the Rambam’s ruling. He agrees that if the person desires to lift them one by one, he acquires them.)

Because of its size.

The literal meaning of the Rambam’s words implies that moving the ship itself is difficult. The Maggid Mishneh, however, points to another difficulty involved in meshichah. As the Rambam stated (Chapter 2, Halachah 5), meshichah is effective only in a corner off the public domain or in a courtyard whose ownership the purchaser and the seller share. It is not effective as a kinyan in the public domain. Mesirah, by contrast, is effective in the public domain (Chapter 4, Halachah 3), and that is where ships are usually kept. The Maggid Mishneh maintains that the difficulty the Rambam speaks of involves transporting the ship from the public domain into a place where meshichah is effective.

There is a difference of opinion among the Rabbis regarding what constitutes mesirah, “handing over.” Some say that the seller must actually hand the object of the sale over to the purchaser. [From a simple reading of the wording chosen by the Rambam, it would appear that he accepts this view.]
(The view of Rabbenu Yitzchak quoted by the Tur is that mesirah is effective because once one gives over the rope of a ship [or according to his view, an animal’s reins] with one slight motion of one’s hands, it will move slightly. Hence, even when one has not actually moved it, the transaction is completed.)
Others maintain [and this is the perspective cited by the Shulchan Aruch (Choshen Mishpat 198:8)] that this is unnecessary; all that is required is for the purchaser to take hold of the object in the presence of, or at the command of, the seller.

The Maggid Mishneh states that this applies to large containers that can be dragged only by several people at a time.

I.e., no portion of it can remain in its previous place.

And any stipulation agreed upon with regard to a business transaction is binding.

Note, however, Chapter 7, Halachot 1-2.

And then the money that he paid must be returned to him.

Because of this explanation, the Ramah (Choshen Mishpat 198:5) quotes an opinion that states that if the object of the sale was stored in a place that could not be destroyed by fire, the Sages’ ordinance does not apply, and the sale is finalized through the payment of money.

I.e., it is a natural tendency for a person not to undertake risks for property belonging to another person.

I.e., the seller must return the money paid by the purchaser, as stated in the following halachah.

For the article is considered to have remained the possession of the seller, and it is his responsibility to provide it to the purchaser or to return his money.

This law was originally established because there was a suspicion that the seller would be lax and not make an effort to save property when he could. Nevertheless, once it was established, it applies even in an instance where there was no possibility of his saving the property.

In his Kessef Mishneh, Rav Yosef Karo explains that the Rambam is not saying that the purchaser acquires the property by virtue of its being within his domain (kinyan chatzer). For since the home is rented out, he does not have that authority. Instead, the intent is that since the home belongs to the purchaser, he will endeavor to save it and not let it be destroyed by fire. And while he is saving his home, he will also save the article he purchased. Rav Karo also alludes to this explanation when quoting the law in his Shulchan Aruch (Choshen Mishpat 198:5).

There are two explanations of the dynamics of this acquisition:
a) The purchaser acquires through a kinyan chatzer, by virtue of the fact that the object was located in his domain. In this instance, however, the domain must be secure and the article protected within, or the person must stand next to the domain and say: "May my field acquire it for me."
b) The purchaser acquires it by virtue of a kinyan agav - i.e., the contractual act that secures possession of the landed property also secures possession of the movable property - as explained in the following two halachot.

And it is his responsibility to see that it is not destroyed.

Chapter 1, Halachah 18.

The Shulchan Aruch (Choshen Mishpat 202:5) rules that livestock are considered to be movable property in this context.

Similarly, this process of acquisition is effective if the recipient acquires the landed property through a kinyan sudar, the exchange of a handkerchief, as explained in Chapter 6, Halachah 7.

This is referred to as kinyan agav. Kiddushin 26a derives the effectiveness of this process from II Chronicles 21:3, which states: “And their father gave them manifold gifts... together with fortified cities,” explaining that with the acquisition of the cities, they acquired the gifts. [There are commentaries that maintain that the Rambam considers kinyan agav to be a Rabbinic institution. According to that view, the passage in Kiddushin is merely an asmachta, a support from a Biblical passage, but not the actual source of the law.]
There is a difference of opinion between the Maggid Mishneh and the Kessef Mishneh in their interpretation of this halachah. The Maggid Mishneh maintains that the movable property can be acquired in this manner only when the purchaser has already paid for it in full. The Kessef Mishneh, by contrast, maintains that this is not necessary, and the transaction is binding even if full payment has not been made.

The Ramah (Choshen Mishpat 202:1) adds that even if one rents the landed property, one can acquire movable property that is sold or given as a gift.

In such a circumstance, the fact that the movable property is collected within the landed property indicates that the seller wants to transfer ownership over it together with the landed property (Kessef Mishneh).

The Ra’avad and the Tur differ with the Rambam concerning this matter and maintain that such a statement must be made even when the movable property is collected within the immovable property. The Shulchan Aruch (Choshen Mishpat 202:2) quotes the opinion of the Rambam, while the Ramah cites that of the other authorities.

Even according to the Ra’avad, the Sefer Me’irat Einayim 202:4 maintains that if the landed property is secure and the movable property is contained within, the purchaser acquires the movable property by virtue of its presence in his domain (kinyan chatzer) without making any specific statement. The Siftei Cohen 202:3 attempts to refute this ruling.

Kiddushin 27a desires to derive this concept from the following classic Talmudic narrative: Rabban Gamliel and other Torah sages were traveling to Rome by ship. In the middle of the journey, Rabban Gamliel realized that he had not taken the tithes from produce that he had harvested. He then separated the first tithe by giving to Rabbi Yehoshua, a priest, through a kinyan agav. He then separated the tithe for the poor by giving it to Rabbi Akiva, who was the collector of alms for the poor, through a kinyan agav. The Talmud deduces from this that although the land was given to Rabbi Akiva and the produce to others - i.e., to the poor - a kinyan agav is effective.

If the seller does not desire to retract, there is no difficulty. For when he takes possession of the article, he will acquire it through hagbahah or meshichah.

These rulings comes as a result of the fact that the Talmud (ibid.) concludes the discussion of the above matter without reaching a resolution of the issue. For the example of Rabbi Akiva is not accepted; since he was responsible for the collection of funds for the poor, it is possible that he was acting as their agent and acquired the movable property (the produce) on their behalf. Hence, it is not a case in which two different people - one acquiring the landed property and one acquiring the movable property - are involved.
Because the matter is unresolved, and neither party can prove that he has a right to it, the Rambam follows the principle that the movable property should not be taken away from the person in possession of it. Therefore, if the purchaser has not taken possession of it, he is not allowed to. If, however, he did take possession of it before the matter was brought to court, since the property is in his possession and he has a claim to it that cannot be utterly refuted, he is allowed to retain possession.
The Rashba, the Tur and the Ramah (Choshen Mishpat 202:3) differ with the latter point and maintain that because the matter is unresolved, the purchaser has no right to seize the property, and even if he does seize it, he should not be allowed to retain possession.

As mentioned in the notes on the first halachot of Chapter 2, servants have an intermediate status, between landed property and movable property, with regard to the laws of acquisition. Therefore, since landed property cannot be acquired by virtue of the acquisition of movable property, servants - who in certain ways resemble landed property -cannot be acquired by virtue of the acquisition of landed property.

For since landed property cannot be acquired by virtue of the acquisition of other landed property, the acquisition of servants - who in certain ways resemble movable property -cannot be effective with regard to the acquisition of landed property.
The law stated in Chapter I, Halachah 19, that one can acquire ten fields in different countries through manifesting one’s ownership over one of them does not depend on the principle of kinyan agav. Instead, the rationale is “the earth is one continuous entity” (Bava Kama 12a). Thus, there is a connection between one’s activity concerning one portion of land and one’s activity concerning another.

Since the servants are presently within the landed property, this physical proximity makes a kinyan agav possible.

I.e., the fact that servants move explains the difference between the law concerning a field and servants, and the law concerning ten fields mentioned above. Servants, unlike land - which is one continuous entity - move. Nor are they like livestock, which can be acquired through a kinyan agav. For livestock move under the direction of their shepherd, while a servant moves because of his own volition.

For one cannot acquire landed property - or servants, who resemble landed property - by virtue of the acquisition of movable property.

For servants are not like landed property, since they move. Hence, a kinyan agav is not effective.

In which instance, the purchaser acquires the movable property because it is located in his domain - i.e., on the servant - according to the principle of kinyan chatzer.

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 202:9) mention opinions that also require the servant to be sleeping. For then he can be considered like a field that is being watched by his master. If he is awake, by contrast, he is guarding the property on his own accord.

For there is no halachic mechanism that enables a person to acquire one type of movable property by virtue of the acquisition of another. Instead, each individual entity must be acquired on its own, as indicated at the beginning of this chapter.

For the halachic medium of kinyan chatzer, acquiring an article because it is contained within one’s domain, is effective only when that domain is stationary.

And thus could not walk and resembles a stationary domain.

Rabbi Akiva Eiger notes that there is a difference between the meshichah performed when an animal can walk freely - in which instance, one must merely cause it to lift its legs - and the meshichah performed when the animal is bound, in which instance one must push or pull it from its original space. Moreover, according to the Nimukei Yosef (Bava Metzia, Chapter 1), there is a difference of opinion among our Sages whether one can perform meshichah on an animal in the latter way, since this is not the norm.

I.e., he does not want to sell him the animal, only the articles that it is carrying.

If the animal is not bound, causing the animal to walk is not considered to be performing meshichah on the articles it is carrying.

According to the Rambam, the explanation of this ruling is as follows: Since the animal belongs to the seller, the purchaser cannot acquire the articles it is bearing through a kinyan chatzer.
There are other opinions that differ with the Rambam with regard to the rationale for this halachah. They maintain - in contrast to the Rambam, who does not appear to accept the following principle - that if one performs meshichah on an article while it is contained in an article belonging to the seller, one acquires it [Tur and Shulchan Aruch (Choshen Mishpat 200:6)]. Therefore, they maintain that when articles that the purchaser wishes to acquire are held in containers belonging to the seller, if the seller gives instructions and the purchaser performs meshichah on the container, he acquires the articles [Tur and Shulchan Aruch (Choshen Mishpat 202:15)]. Nevertheless, even these authorities accept the law stated in this halachah, because there is a difference between performing meshichah on an animal and on utensils (see the notes on the previous halachah), and the meshichah employed for utensils is not effective if performed for animals (Sefer Me’irat Einayim 202:28).

When a flowerpot has a hole, the plants growing within are considered to be attached to the earth below them, for the hole allows them to derive their nurture from the earth. If the flowerpot does not have a hole, these principles do not apply.

For the flowerpot is movable property and can be acquired through meshichah.

Since the plants derive their nurture from the ground, as mentioned above, they are considered to be landed property and cannot be acquired through meshichah. Instead, chazakah - or any other kinyan that is effective for the acquisition of landed property - is necessary.

By performing an activity for the benefit of the plants.

For the flowerpot itself is considered to be movable property and can be acquired through hagbahah or meshichah, but not through chazakah.

Using the medium of a kinyan agav described above.

I.e., movable property, which will never be expropriated from the purchaser and awarded to a creditor of the seller for an obligation that the seller has not met.

I.e., landed property, which may be expropriated from the purchaser. For the landed property that a person owns is considered to be on lien to all of his financial obligations.

Chapter I, Halachah 17.

And is therefore considered to be movable property.

I.e., uproot the flax from the land; doing so is considered to be chazakah, enabling him to finalize the rental of the field.

See the Kessef Mishneh, which mentions that the seller must specifically state that he is renting the land.

For on the basis of a kinyan agav, all the flax - movable property - is acquired through the chazakah performed to finalize the rental of the field.

For it is necessary to perform meshichah or hagbahah on every entity of movable property that one seeks to acquire, as stated in Halachah 2.