Land and movable property each have different mechanisms by which they can be acquired. What is the source for each of these methods and in what situations are these methods limited? A kinyan agav is when one acquires land and movable property in the same deal. He/she can acquire the land and automatically the movable items are acquired as well, even though the method by which one acquires the land is not a method that would generally work for movable property. A question was asked: can a kinyan agav be effected if the movable items are not found in the land that is being acquired? Several sources are brought to attempt to answer this question.
Kiddushin 26
September 08, 2023 | כ״ב באלול תשפ״ג
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Kiddushin
Masechet Kiddushin is sponsored by Julie and Martin Mendelsohn in honor of their two children who were recently married
This month’s learning is sponsored by Adam, Carolyn, Michal, Josh, Benny, Izzy, Gali, Shim, Zoe, Zachy and Yehuda in loving memory of Judith Rosenfeld Hochstadter, Gittel bat Kreindel v’Binyamin BenZion on her second yahrzeit. “Her curiosity, humor, intellect and devout nature continues to inspire and hold us accountable. We miss her and think of her in all our pursuits, especially in our Hadran learning, where she would be glad to know that she didn’t have to boil more than 1 egg at a time!!”
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Kiddushin
Masechet Kiddushin is sponsored by Julie and Martin Mendelsohn in honor of their two children who were recently married
This month’s learning is sponsored by Adam, Carolyn, Michal, Josh, Benny, Izzy, Gali, Shim, Zoe, Zachy and Yehuda in loving memory of Judith Rosenfeld Hochstadter, Gittel bat Kreindel v’Binyamin BenZion on her second yahrzeit. “Her curiosity, humor, intellect and devout nature continues to inspire and hold us accountable. We miss her and think of her in all our pursuits, especially in our Hadran learning, where she would be glad to know that she didn’t have to boil more than 1 egg at a time!!”
Kiddushin 26
אִי נָמֵי: בַּחֲבִילֵי זְמוֹרוֹת.
Alternatively, the buyer can lift an elephant by using bundles of vines. He leads the elephant to them, and when the elephant stands on the bundles of vines this is considered lifting the elephant.
מַתְנִי׳ נְכָסִים שֶׁיֵּשׁ לָהֶם אַחְרָיוּת – נִקְנִין בְּכֶסֶף וּבִשְׁטָר וּבַחֲזָקָה. שֶׁאֵין לָהֶם אַחְרָיוּת – אֵין נִקְנִין אֶלָּא בִּמְשִׁיכָה. נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת נִקְנִין עִם נְכָסִים שֶׁיֵּשׁ לָהֶם אַחְרָיוּת בְּכֶסֶף וּבִשְׁטָר וּבַחֲזָקָה,
MISHNA: Property that serves as a guarantee, i.e., land or other items that are fixed in the earth, can be acquired by means of giving money, by means of giving a document, or by means of taking possession of it. Property that does not serve as a guarantee, i.e., movable property, can be acquired only by pulling. Property that does not serve as a guarantee can be acquired along with property that serves as a guarantee by means of giving money, by means of giving a document, or by means of taking possession of them. The movable property is transferred to the buyer’s possession when it is purchased together with the land, by means of an act of acquisition performed on the land.
וְזוֹקְקִין אֶת הַנְּכָסִים שֶׁיֵּשׁ לָהֶם אַחְרָיוּת לִישָּׁבַע עֲלֵיהֶן.
Generally, one is not obligated to take an oath concerning the denial of a claim with regard to land. The mishna continues: And in a legal dispute involving both land and movable property, if the defendant makes a partial admission of the claim with regard to the movable property, thereby rendering himself obligated to take an oath denying any responsibility for the remaining property, the movable property binds the property that serves as a guarantee, i.e., the land, so that he is forced to take an oath concerning the land as well, despite the fact that one is generally not obligated to take an oath for a claim involving land.
גְּמָ׳ בְּכֶסֶף מְנָלַן? אָמַר חִזְקִיָּה: אָמַר קְרָא: ״שָׂדוֹת בַּכֶּסֶף יִקְנוּ״. וְאֵימָא עַד דְּאִיכָּא שְׁטָר, דִּכְתִיב: ״וְכָתוֹב בַּסֵּפֶר וְחָתוֹם״! אִי כְּתִיב ״יִקְנוּ״ לְבַסּוֹף – כִּדְקָאָמְרַתְּ, הַשְׁתָּא דִּכְתִיב ״יִקְנוּ״ מֵעִיקָּרָא, כֶּסֶף – קָנֵי, שְׁטָר – רְאָיָה בְּעָלְמָא הוּא.
GEMARA: The Gemara inquires: From where do we derive that land can be acquired by means of money? Ḥizkiyya said that the verse states: “They shall acquire fields with money” (Jeremiah 32:44). The Gemara asks: But if the proof is from that verse, one can say that the acquisition is not valid unless there is a document as well, as it is written in the same verse: “And write a document and sign” (Jeremiah 32:44). The Gemara answers: If it were written: They shall acquire fields with money, at the end of the verse, it would be as you said, that one must also write a document so that he can acquire the land with money. Now that it is written “they shall acquire” at the beginning of the verse, this teaches that the money itself effects acquisition of the land, and the document is merely a proof.
אָמַר רַב: לֹא שָׁנוּ אֶלָּא בִּמְקוֹם שֶׁאֵין כּוֹתְבִין אֶת הַשְּׁטָר, אֲבָל בִּמְקוֹם שֶׁכּוֹתְבִין אֶת הַשְּׁטָר – לֹא קָנָה. וְאִי פָּרֵישׁ – פָּרֵישׁ.
Rav says: They taught that land can be acquired by means of money alone, i.e., without a document, only in a place where the custom is that they do not write documents; but in a place where the custom is that they write documents one does not acquire land until a document is given to him. And if he specified that he wishes to acquire the land from the time of the money transfer, then he has specified his wishes, and the land is acquired once the money is given.
כִּי הָא דְּרַב אִידִי בַּר אָבִין כִּי זָבֵין אַרְעָא, אָמַר: אִי בָּעֵינָא בְּכַסְפָּא – אִיקְנֵי, אִי בָּעֵינָא בִּשְׁטָרָא – אִיקְנֵי. אִי בָּעֵינָא בְּכַסְפָּא – אִיקְנֵי, דְּאִי בָּעֵיתוּ לְמִיהְדַּר, לָא מָצִיתוּ הָדְרִיתוּ. וְאִי בָּעֵינָא בִּשְׁטָרָא – אִיקְנֵי, דְּאִי בָּעֵינָא לְמִיהְדַּר, הָדַרְנָא בִּי.
The Gemara comments: This is like that which Rav Idi bar Avin would do. When purchasing land, Rav Idi bar Avin would say: If I wish to acquire it by means of money, I will acquire it in that manner, and if I wish to acquire it by means of a document, I will acquire it by that method. He would stipulate at the outset that he reserves the right to choose how the transaction will be finalized. The Gemara elaborates: If I wish to acquire it by means of money, I will acquire it in that way, as, if you wish to retract your participation in the sale you cannot retract it, because the money has already changed hands. And if I wish to acquire the land by means of a document, I will acquire it in that way, as, if I wish to retract my participation in the sale I can retract it provided that I have not received a document of purchase.
וּבִשְׁטָר. מְנָלַן? אִילֵּימָא מִשּׁוּם דִּכְתִיב: ״וְכָתוֹב בַּסֵּפֶר וְחָתוֹם וְהָעֵד עֵדִים״, וְהָאָמְרַתְּ שְׁטָר רְאָיָה בְּעָלְמָא הוּא! אֶלָּא מֵהָכָא, ״וָאֶקַּח אֶת סֵפֶר הַמִּקְנָה״. אָמַר שְׁמוּאֵל: לֹא שָׁנוּ אֶלָּא בִּשְׁטַר מַתָּנָה, אֲבָל בְּמֶכֶר לֹא קָנָה עַד שֶׁיִּתֵּן לוֹ דָּמִים.
§ The mishna teaches that land can be purchased by means of a document. The Gemara asks: From where do we derive this? If we say that it is because it is written: “And write in a document and sign, and witnesses shall testify” (Jeremiah 32:44), but didn’t you say that the document mentioned in the verse is merely a document of proof? Rather, it is derived from here: “And I took the deed of purchase” (Jeremiah 32:11), an expression that indicates that the document itself effects the acquisition. Shmuel said: The Sages taught that the document itself effects acquisition only in the case of a deed of a gift. But with regard to a sale, it does not effect acquisition until the buyer gives the seller money. The document itself does not effect the acquisition.
מֵתִיב רַב הַמְנוּנָא: בִּשְׁטָר כֵּיצַד? כָּתַב לוֹ עַל הַנְּיָיר אוֹ עַל הַחֶרֶס, אַף עַל פִּי שֶׁאֵין בָּהֶם שָׁוֶה פְּרוּטָה, ״שָׂדִי מְכוּרָה לָךְ״, ״שָׂדִי נְתוּנָה לְךָ״ – הֲרֵי זוֹ מְכוּרָה וּנְתוּנָה. הוּא מוֹתֵיב לַהּ וְהוּא מְפָרֵק לַהּ: בְּמוֹכֵר שָׂדֵהוּ מִפְּנֵי רָעָתָהּ.
Rav Hamnuna raises an objection to this from a baraita: How is acquisition performed by means of a document? If he wrote for him on paper or earthenware, even though the paper or the earthenware is not worth one peruta: My field is sold to you, or: My field is given to you as a gift, it is thereby sold or given. This indicates that a document is sufficient to effect acquisition both in the case of a sale and in the case of a gift. Rav Hamnuna raised the objection and he resolved it: The baraita is referring to one who sells his field due to its poor quality. The seller wants to be rid of his field due to its decreasing value and would like to transfer ownership of it as quickly as possible. In this case writing a document is enough to complete the acquisition.
רַב אָשֵׁי אָמַר: בְּמַתָּנָה בִּיקֵּשׁ לִיתְּנָהּ לוֹ, וְלָמָּה כָּתַב לוֹ לְשׁוֹן מֶכֶר – כְּדֵי לְיַפּוֹת אֶת כּוֹחוֹ.
Rav Ashi says: It can be claimed that the entire baraita is referring to one case, that of a gift one wished to give another. The baraita does not deal with a sale at all. And why does he write for him a deed for a gift containing the language of a sale? He does it in order to enhance his power. If it turns out that there was a lien on this land, the beneficiary can collect the value of the field from the giver’s other property, as though this land had been sold to him. In other words, by writing that it is a sale, the giver grants the beneficiary the acquisition power of a buyer, but since the transaction is actually a gift, the document itself completes the acquisition.
וּבַחֲזָקָה. מְנָלַן? אָמַר חִזְקִיָּה: אָמַר קְרָא: ״וּשְׁבוּ בְּעָרֵיכֶם אֲשֶׁר תְּפַשְׂתֶּם״, בַּמֶּה תְּפַשְׂתֶּם – בִּישִׁיבָה. דְּבֵי רַבִּי יִשְׁמָעֵאל תָּנָא: ״וִירִשְׁתֶּם אֹתָהּ וִישַׁבְתֶּם בָּהּ״, בַּמֶּה יְרַשְׁתֶּם – בִּישִׁיבָה.
§ The mishna further teaches that land can be acquired by means of taking possession of it. The Gemara asks: From where do we derive this? Ḥizkiyya said that the verse states: “And dwell in your cities that you have taken” (Jeremiah 40:10). In what manner have you taken these cities? They are taken by dwelling, which indicates that taking possession of a plot of land and dwelling there is an act demonstrating ownership, and it is itself a valid act of acquisition. A Sage from the school of Rabbi Yishmael taught a different proof: “And you shall possess it and dwell there” (Deuteronomy 11:31). How have you possessed it? You have done so by dwelling there. This teaches that land can be acquired through an act that demonstrates ownership.
וְשֶׁאֵין לָהֶם אַחְרָיוּת אֵין נִקְנִין אֶלָּא בִּמְשִׁיכָה. מְנָלַן? דִּכְתִיב: ״וְכִי תִמְכְּרוּ מִמְכָּר לַעֲמִיתֶךָ אוֹ קָנֹה מִיַּד עֲמִיתֶךָ״ – דָּבָר הַנִּקְנֶה מִיָּד לְיָד.
§ The mishna teaches that property that does not serve as a guarantee can be acquired only by pulling. The Gemara asks: From where do we derive this? As it is written: “And if you sell any item to your neighbor or buy from your neighbor’s hand” (Leviticus 25:14). This verse speaks of an item that is acquired from hand to hand, i.e., by pulling.
וּלְרַבִּי יוֹחָנָן דְּאָמַר: דְּבַר תּוֹרָה מָעוֹת קוֹנוֹת, מַאי אִיכָּא לְמֵימַר? תַּנָּא תַּקַּנְתָּא דְרַבָּנַן קָתָנֵי.
The Gemara asks: And according to the opinion of Rabbi Yoḥanan, who says that by Torah law giving money effects acquisition but pulling does not, what can be said? Rabbi Yoḥanan maintains that acquisition through pulling is a rabbinic decree, and by Torah law movable property can be acquired only by means of giving money. Why does the mishna not mention this mode of acquisition? The Gemara answers: Rabbi Yoḥanan could answer that the tanna teaches a rabbinic ordinance, which reflects the accepted practice, but he does not find it necessary to mention a mode of acquisition that applies by Torah law.
נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת. מְנָהָנֵי מִילֵּי? אָמַר חִזְקִיָּה: דְּאָמַר קְרָא: ״וַיִּתֵּן לָהֶם אֲבִיהֶם מַתָּנוֹת וְגוֹ׳ עִם עָרֵי מְצֻרוֹת בִּיהוּדָה״.
§ The mishna further states that property that does not serve as a guarantee, i.e., movable property, can be acquired along with property that serves as a guarantee, i.e., land. The Gemara asks: From where is this matter derived? Ḥizkiyya said that the verse states: “And their father gave them great gifts, of silver, and of gold, and of precious things, with fortified cities in Judah” (II Chronicles 21:3). This indicates that he gave them movable items together with the cities. He did not need to give the items to them directly, as he was able to transfer these gifts by means of the cities he gave them.
אִיבַּעְיָא לְהוּ: בָּעֵינַן צְבוּרִים, אוֹ לָא? אָמַר רַב יוֹסֵף: תָּא שְׁמַע: רַבִּי עֲקִיבָא אוֹמֵר: קַרְקַע כׇּל שֶׁהוּא חַיֶּיבֶת בַּפֵּאָה, וּבַבִּכּוּרִים,
A dilemma was raised before the Sages with regard to this matter of acquisition of movable property by way of land: Do we require that this movable property be actually piled on the land that is sold or not? Rav Yosef said: Come and hear a proof from the following mishna (Pe’a 3:6). Rabbi Akiva says: The owner of any amount of land is obligated in pe’a and in first fruits,
וְלִכְתּוֹב עָלֶיהָ פְּרוֹסְבּוּל, וְלִקְנוֹת עִמָּהּ נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת. וְאִי אָמְרַתְּ בָּעֵינַן צְבוּרִים, כׇּל שֶׁהוּא לְמַאי חֲזֵי?
and if the debtor possesses land of any area the creditor can write a document that prevents the Sabbatical Year from abrogating an outstanding debt [prosbol] for it so that his loans will not be canceled in the seventh year, and he can acquire property that does not serve as a guarantee along with it. And if you say that we require the movable property to be piled on the land, for what is land of any size fit? What can be piled on a tiny spot of land?
תַּרְגְּומַאּ רַב שְׁמוּאֵל בַּר בִּיסְנָא קַמֵּיהּ דְּרַב יוֹסֵף: כְּגוֹן שֶׁנָּעַץ בָּהּ מַחַט. אֲמַר לֵיהּ רַב יוֹסֵף: קְבַסְתַּן! אִיכְּפַל תַּנָּא לְאַשְׁמוֹעִינַן מַחַט? אָמַר רַב אָשֵׁי: מַאן לֵימָא לַן דְּלָא תְּלָה בָּהּ מַרְגָּנִיתָא דְּשָׁוְויָא אַלְפָּא זוּזֵי.
Rav Shmuel bar Bisna interpreted it before Rav Yosef as follows: For example, if one stuck a needle into a tiny patch of land, which he sold by means of the land, the needle is acquired. Rav Yosef said to him: You disgust me [kevastan]. Did the tanna go to all that trouble just to teach us that a needle can be acquired by means of land? Rav Ashi said: Who shall say to us that he did not hang a pearl worth one thousand dinars on the needle? One can acquire an item of high value through land of this size. In any event, the question of whether or not the movable property must be piled onto the land has not been resolved.
תָּא שְׁמַע, אָמַר רַבִּי אֶלְעָזָר: מַעֲשֶׂה בְּמָדוֹנִי אֶחָד שֶׁהָיָה בִּירוּשָׁלַיִם שֶׁהָיוּ לוֹ מִטַּלְטְלִין הַרְבֵּה, וּבִיקֵּשׁ לִיתְּנָם בְּמַתָּנָה. אָמְרוּ לוֹ: אֵין לוֹ תַּקָּנָה עַד שֶׁיַּקְנֵם עַל גַּבֵּי קַרְקַע. מָה עָשָׂה? הָלַךְ וְלָקַח בֵּית סֶלַע סָמוּךְ לִירוּשָׁלַיִם, וְאָמַר: ״צְפוֹנִי זֶה לִפְלוֹנִי, וְעִמּוֹ מֵאָה צֹאן וּמֵאָה חָבִיּוֹת״, וָמֵת, וְקִיְּימוּ אֶת דְּבָרָיו.
Come and hear, as Rabbi Elazar said: There was an incident involving a certain Madonite [Madoni] who was in Jerusalem, as he had a great deal of movable property and wished to give it as a gift. He was ill and did not have time for the recipient to acquire the property by pulling. The Sages said to him: One in this situation has no remedy but to transfer them by means of land. What did he do? He went and acquired a beit sela, apparently meaning land the size of a sela coin, near Jerusalem and said: This northern portion of the beit sela is given to so-and-so, and with it one hundred sheep and one hundred barrels. And the Madonite died, and the Sages fulfilled his statement and gave the gifts.
וְאִי אָמְרַתְּ בָּעֵינַן צְבוּרִים בָּהּ, בֵּית סֶלַע לְמַאי חֲזֵי? מִי סָבְרַתְּ בֵּית סֶלַע, סֶלַע מַמָּשׁ? מַאי סֶלַע – דִּנְפִישׁ טוּבָא. וְאַמַּאי קָרוּ לֵיהּ סֶלַע – דִּקְשֵׁי כְּסֶלַע.
And if you say that to acquire movable property by way of land we require that the property be actually piled upon it, for what is a beit sela fit? It is impossible to pile one hundred sheep and one hundred barrels on top of such a small plot of land. The Gemara rejects this argument: Do you maintain that a beit sela is referring to a place that is actually the size of a sela coin? No; rather what is the meaning of the term sela? It is referring to a place that is very large and that could hold the many gifts. If that is true, why did they call it sela? This name indicates that it was hard as rock [sela].
תָּא שְׁמַע, דְּאָמַר רַב יְהוּדָה אָמַר רַב: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁחָלָה בִּירוּשָׁלַיִם – כְּרַבִּי אֱלִיעֶזֶר, וְאָמְרִי לַהּ: בָּרִיא הָיָה – כְּרַבָּנַן,
Come and hear a proof from a different source, as Rav Yehuda says that Rav says: There was an incident involving a certain person who became sick in Jerusalem, and the assumption that he became sick is in accordance with the opinion of Rabbi Eliezer, who says that a person on his deathbed can transfer property only by means of an accepted standard act of acquisition. And some say he was healthy, and that assumption is in accordance with the opinion of the Rabbis that a person on his deathbed can transfer property by means of speech alone, whereas a healthy person requires an accepted act of acquisition.
שֶׁהָיוּ לוֹ מִטַּלְטְלִין הַרְבֵּה וּבִיקֵּשׁ לִיתְּנָם בְּמַתָּנָה, אָמְרוּ לוֹ: אֵין לוֹ תַּקָּנָה עַד שֶׁיַּקְנֵם עַל גַּבֵּי קַרְקַע. מָה עָשָׂה? הָלַךְ וְלָקַח בֵּית רוֹבַע סָמוּךְ לִירוּשָׁלַיִם, וְאָמַר: ״טֶפַח עַל טֶפַח לִפְלוֹנִי וְעִמּוֹ מֵאָה צֹאן וּמֵאָה חָבִיּוֹת״, וָמֵת, וְקִיְּימוּ חֲכָמִים אֶת דְּבָרָיו. וְאִי אָמְרַתְּ בָּעֵינַן צְבוּרִים, טֶפַח עַל טֶפַח לְמַאי חֲזֵי?
The incident happened as follows: This man had a great deal of movable property and he wished to give it away as a gift. The Sages said to him: In this situation one has no remedy but to transfer movable property by means of land. What did he do? He went and acquired land the size of a beit rova near Jerusalem and said: This square handbreadth is given to so-and-so, and with it one hundred sheep and one hundred barrels. And he died, and the Sages fulfilled his statement. And if you say that we require that the property be piled on the land, for what is a square handbreadth fit? Is it possible to place all of these items in such a limited space?
הָכָא בְּמַאי עָסְקִינַן, לִדְמֵי. הָכִי נָמֵי מִסְתַּבְּרָא, דְּאִי סָלְקָא דַעְתָּךְ מֵאָה צֹאן וּמֵאָה חָבִיּוֹת מַמָּשׁ, נַיקְנִינְהוּ נִיהֲלֵיהּ בַּחֲלִיפִין.
The Gemara rejects this: With what are we dealing here? It is with money, i.e., he sought to give the value of the barrels and sheep, and money of this amount can be placed on a small plot of land. The Gemara comments: So too, it is reasonable that this incident involved money. As, if it enters your mind to say that it involved an actual group of one hundred sheep and one hundred barrels, let him transfer them to the recipient through an act of symbolic exchange. If the incident involved money, which cannot be transferred by symbolic exchange, he had no recourse but to acquire the land.
וְאֶלָּא מַאי, לִדְמֵי? נַיקְנִינְהוּ נִיהֲלֵיהּ בִּמְשִׁיכָה! אֶלָּא: דְּלֵיתֵיהּ לִמְקַבֵּל מַתָּנָה. הָכִי נָמֵי, דְּלֵיתֵיהּ לִמְקַבֵּל מַתָּנָה.
The Gemara raises a difficulty against this argument: Rather, what will you say, that this is referring to money, which cannot be acquired through symbolic exchange? Even so, he still could have acted differently: Let him transfer it to the recipient through pulling. Rather, you are forced to say that the recipient of this gift was not present, and the man wanted to grant him possession of it without the recipient having to perform a physical act of acquisition. So too, it is possible that the recipient of the gift was not present, and he was unable to transfer it to him through symbolic exchange. Consequently, there is no proof that the incident involved money.
וְנִיזְכִּינְהוּ נִיהֲלֵיהּ אַגַּב אַחֵר? לָא סָמְכָה דַּעְתֵּיהּ, סָבַר שָׁמֵיט וְאָכֵיל לְהוּ.
The Gemara asks: Is there no other way to perform this acquisition? But let him transfer it to him by means of another person, i.e., another can pull the property on behalf of the recipient. The Gemara answers: The giver did not rely on that option, as he feared that the third party might seize it and consume it or use the property in some other manner. The giver wanted to be sure that the acquisition would be completed in full.
וְאֶלָּא מַאי ״אֵין לוֹ תַּקָּנָה״? הָכִי קָאָמַר: לְמַאי דְּלָא סָמְכָה דַּעְתֵּיהּ – אֵין לוֹ תַּקָּנָה עַד שֶׁיַּקְנֵם עַל גַּבֵּי קַרְקַע.
Rather, what then is the meaning of the statement: He has no remedy? Even if he did not want to use the option of a third party, it was certainly available to him. The Gemara explains that this is what Rav was saying and meant in his description of this incident: In accordance with his decision that he does not rely on another person and does not want to transfer property by means of anyone else, in this situation one has no remedy but to transfer movable property by means of land. In summary, no decisive proof has been cited as to whether or not it is possible to acquire movable property by means of land when the items are not piled upon the land.
תָּא שְׁמַע: מַעֲשֶׂה בְּרַבָּן גַּמְלִיאֵל וּזְקֵנִים שֶׁהָיוּ בָּאִים בִּסְפִינָה, אָמַר לָהֶם רַבָּן גַּמְלִיאֵל לַזְּקֵנִים: עִישּׂוּר שֶׁאֲנִי עָתִיד לָמוֹד
Come and hear a proof from the following mishna (Ma’aser Sheni 5:9): There was an incident involving Rabban Gamliel and other Elders who were traveling on a ship. Rabban Gamliel said to the Elders: One-tenth of produce that I will measure out and separate in the future from the produce of my fields
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I had no formal learning in Talmud until I began my studies in the Joint Program where in 1976 I was one of the few, if not the only, woman talmud major. It was superior training for law school and enabled me to approach my legal studies with a foundation . In 2018, I began daf yomi listening to Rabbanit MIchelle’s pod cast and my daily talmud studies are one of the highlights of my life.
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Yafit Fishbach
Memphis, Tennessee, United States
Kiddushin 26
אִי נָמֵי: בַּחֲבִילֵי זְמוֹרוֹת.
Alternatively, the buyer can lift an elephant by using bundles of vines. He leads the elephant to them, and when the elephant stands on the bundles of vines this is considered lifting the elephant.
מַתְנִי׳ נְכָסִים שֶׁיֵּשׁ לָהֶם אַחְרָיוּת – נִקְנִין בְּכֶסֶף וּבִשְׁטָר וּבַחֲזָקָה. שֶׁאֵין לָהֶם אַחְרָיוּת – אֵין נִקְנִין אֶלָּא בִּמְשִׁיכָה. נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת נִקְנִין עִם נְכָסִים שֶׁיֵּשׁ לָהֶם אַחְרָיוּת בְּכֶסֶף וּבִשְׁטָר וּבַחֲזָקָה,
MISHNA: Property that serves as a guarantee, i.e., land or other items that are fixed in the earth, can be acquired by means of giving money, by means of giving a document, or by means of taking possession of it. Property that does not serve as a guarantee, i.e., movable property, can be acquired only by pulling. Property that does not serve as a guarantee can be acquired along with property that serves as a guarantee by means of giving money, by means of giving a document, or by means of taking possession of them. The movable property is transferred to the buyer’s possession when it is purchased together with the land, by means of an act of acquisition performed on the land.
וְזוֹקְקִין אֶת הַנְּכָסִים שֶׁיֵּשׁ לָהֶם אַחְרָיוּת לִישָּׁבַע עֲלֵיהֶן.
Generally, one is not obligated to take an oath concerning the denial of a claim with regard to land. The mishna continues: And in a legal dispute involving both land and movable property, if the defendant makes a partial admission of the claim with regard to the movable property, thereby rendering himself obligated to take an oath denying any responsibility for the remaining property, the movable property binds the property that serves as a guarantee, i.e., the land, so that he is forced to take an oath concerning the land as well, despite the fact that one is generally not obligated to take an oath for a claim involving land.
גְּמָ׳ בְּכֶסֶף מְנָלַן? אָמַר חִזְקִיָּה: אָמַר קְרָא: ״שָׂדוֹת בַּכֶּסֶף יִקְנוּ״. וְאֵימָא עַד דְּאִיכָּא שְׁטָר, דִּכְתִיב: ״וְכָתוֹב בַּסֵּפֶר וְחָתוֹם״! אִי כְּתִיב ״יִקְנוּ״ לְבַסּוֹף – כִּדְקָאָמְרַתְּ, הַשְׁתָּא דִּכְתִיב ״יִקְנוּ״ מֵעִיקָּרָא, כֶּסֶף – קָנֵי, שְׁטָר – רְאָיָה בְּעָלְמָא הוּא.
GEMARA: The Gemara inquires: From where do we derive that land can be acquired by means of money? Ḥizkiyya said that the verse states: “They shall acquire fields with money” (Jeremiah 32:44). The Gemara asks: But if the proof is from that verse, one can say that the acquisition is not valid unless there is a document as well, as it is written in the same verse: “And write a document and sign” (Jeremiah 32:44). The Gemara answers: If it were written: They shall acquire fields with money, at the end of the verse, it would be as you said, that one must also write a document so that he can acquire the land with money. Now that it is written “they shall acquire” at the beginning of the verse, this teaches that the money itself effects acquisition of the land, and the document is merely a proof.
אָמַר רַב: לֹא שָׁנוּ אֶלָּא בִּמְקוֹם שֶׁאֵין כּוֹתְבִין אֶת הַשְּׁטָר, אֲבָל בִּמְקוֹם שֶׁכּוֹתְבִין אֶת הַשְּׁטָר – לֹא קָנָה. וְאִי פָּרֵישׁ – פָּרֵישׁ.
Rav says: They taught that land can be acquired by means of money alone, i.e., without a document, only in a place where the custom is that they do not write documents; but in a place where the custom is that they write documents one does not acquire land until a document is given to him. And if he specified that he wishes to acquire the land from the time of the money transfer, then he has specified his wishes, and the land is acquired once the money is given.
כִּי הָא דְּרַב אִידִי בַּר אָבִין כִּי זָבֵין אַרְעָא, אָמַר: אִי בָּעֵינָא בְּכַסְפָּא – אִיקְנֵי, אִי בָּעֵינָא בִּשְׁטָרָא – אִיקְנֵי. אִי בָּעֵינָא בְּכַסְפָּא – אִיקְנֵי, דְּאִי בָּעֵיתוּ לְמִיהְדַּר, לָא מָצִיתוּ הָדְרִיתוּ. וְאִי בָּעֵינָא בִּשְׁטָרָא – אִיקְנֵי, דְּאִי בָּעֵינָא לְמִיהְדַּר, הָדַרְנָא בִּי.
The Gemara comments: This is like that which Rav Idi bar Avin would do. When purchasing land, Rav Idi bar Avin would say: If I wish to acquire it by means of money, I will acquire it in that manner, and if I wish to acquire it by means of a document, I will acquire it by that method. He would stipulate at the outset that he reserves the right to choose how the transaction will be finalized. The Gemara elaborates: If I wish to acquire it by means of money, I will acquire it in that way, as, if you wish to retract your participation in the sale you cannot retract it, because the money has already changed hands. And if I wish to acquire the land by means of a document, I will acquire it in that way, as, if I wish to retract my participation in the sale I can retract it provided that I have not received a document of purchase.
וּבִשְׁטָר. מְנָלַן? אִילֵּימָא מִשּׁוּם דִּכְתִיב: ״וְכָתוֹב בַּסֵּפֶר וְחָתוֹם וְהָעֵד עֵדִים״, וְהָאָמְרַתְּ שְׁטָר רְאָיָה בְּעָלְמָא הוּא! אֶלָּא מֵהָכָא, ״וָאֶקַּח אֶת סֵפֶר הַמִּקְנָה״. אָמַר שְׁמוּאֵל: לֹא שָׁנוּ אֶלָּא בִּשְׁטַר מַתָּנָה, אֲבָל בְּמֶכֶר לֹא קָנָה עַד שֶׁיִּתֵּן לוֹ דָּמִים.
§ The mishna teaches that land can be purchased by means of a document. The Gemara asks: From where do we derive this? If we say that it is because it is written: “And write in a document and sign, and witnesses shall testify” (Jeremiah 32:44), but didn’t you say that the document mentioned in the verse is merely a document of proof? Rather, it is derived from here: “And I took the deed of purchase” (Jeremiah 32:11), an expression that indicates that the document itself effects the acquisition. Shmuel said: The Sages taught that the document itself effects acquisition only in the case of a deed of a gift. But with regard to a sale, it does not effect acquisition until the buyer gives the seller money. The document itself does not effect the acquisition.
מֵתִיב רַב הַמְנוּנָא: בִּשְׁטָר כֵּיצַד? כָּתַב לוֹ עַל הַנְּיָיר אוֹ עַל הַחֶרֶס, אַף עַל פִּי שֶׁאֵין בָּהֶם שָׁוֶה פְּרוּטָה, ״שָׂדִי מְכוּרָה לָךְ״, ״שָׂדִי נְתוּנָה לְךָ״ – הֲרֵי זוֹ מְכוּרָה וּנְתוּנָה. הוּא מוֹתֵיב לַהּ וְהוּא מְפָרֵק לַהּ: בְּמוֹכֵר שָׂדֵהוּ מִפְּנֵי רָעָתָהּ.
Rav Hamnuna raises an objection to this from a baraita: How is acquisition performed by means of a document? If he wrote for him on paper or earthenware, even though the paper or the earthenware is not worth one peruta: My field is sold to you, or: My field is given to you as a gift, it is thereby sold or given. This indicates that a document is sufficient to effect acquisition both in the case of a sale and in the case of a gift. Rav Hamnuna raised the objection and he resolved it: The baraita is referring to one who sells his field due to its poor quality. The seller wants to be rid of his field due to its decreasing value and would like to transfer ownership of it as quickly as possible. In this case writing a document is enough to complete the acquisition.
רַב אָשֵׁי אָמַר: בְּמַתָּנָה בִּיקֵּשׁ לִיתְּנָהּ לוֹ, וְלָמָּה כָּתַב לוֹ לְשׁוֹן מֶכֶר – כְּדֵי לְיַפּוֹת אֶת כּוֹחוֹ.
Rav Ashi says: It can be claimed that the entire baraita is referring to one case, that of a gift one wished to give another. The baraita does not deal with a sale at all. And why does he write for him a deed for a gift containing the language of a sale? He does it in order to enhance his power. If it turns out that there was a lien on this land, the beneficiary can collect the value of the field from the giver’s other property, as though this land had been sold to him. In other words, by writing that it is a sale, the giver grants the beneficiary the acquisition power of a buyer, but since the transaction is actually a gift, the document itself completes the acquisition.
וּבַחֲזָקָה. מְנָלַן? אָמַר חִזְקִיָּה: אָמַר קְרָא: ״וּשְׁבוּ בְּעָרֵיכֶם אֲשֶׁר תְּפַשְׂתֶּם״, בַּמֶּה תְּפַשְׂתֶּם – בִּישִׁיבָה. דְּבֵי רַבִּי יִשְׁמָעֵאל תָּנָא: ״וִירִשְׁתֶּם אֹתָהּ וִישַׁבְתֶּם בָּהּ״, בַּמֶּה יְרַשְׁתֶּם – בִּישִׁיבָה.
§ The mishna further teaches that land can be acquired by means of taking possession of it. The Gemara asks: From where do we derive this? Ḥizkiyya said that the verse states: “And dwell in your cities that you have taken” (Jeremiah 40:10). In what manner have you taken these cities? They are taken by dwelling, which indicates that taking possession of a plot of land and dwelling there is an act demonstrating ownership, and it is itself a valid act of acquisition. A Sage from the school of Rabbi Yishmael taught a different proof: “And you shall possess it and dwell there” (Deuteronomy 11:31). How have you possessed it? You have done so by dwelling there. This teaches that land can be acquired through an act that demonstrates ownership.
וְשֶׁאֵין לָהֶם אַחְרָיוּת אֵין נִקְנִין אֶלָּא בִּמְשִׁיכָה. מְנָלַן? דִּכְתִיב: ״וְכִי תִמְכְּרוּ מִמְכָּר לַעֲמִיתֶךָ אוֹ קָנֹה מִיַּד עֲמִיתֶךָ״ – דָּבָר הַנִּקְנֶה מִיָּד לְיָד.
§ The mishna teaches that property that does not serve as a guarantee can be acquired only by pulling. The Gemara asks: From where do we derive this? As it is written: “And if you sell any item to your neighbor or buy from your neighbor’s hand” (Leviticus 25:14). This verse speaks of an item that is acquired from hand to hand, i.e., by pulling.
וּלְרַבִּי יוֹחָנָן דְּאָמַר: דְּבַר תּוֹרָה מָעוֹת קוֹנוֹת, מַאי אִיכָּא לְמֵימַר? תַּנָּא תַּקַּנְתָּא דְרַבָּנַן קָתָנֵי.
The Gemara asks: And according to the opinion of Rabbi Yoḥanan, who says that by Torah law giving money effects acquisition but pulling does not, what can be said? Rabbi Yoḥanan maintains that acquisition through pulling is a rabbinic decree, and by Torah law movable property can be acquired only by means of giving money. Why does the mishna not mention this mode of acquisition? The Gemara answers: Rabbi Yoḥanan could answer that the tanna teaches a rabbinic ordinance, which reflects the accepted practice, but he does not find it necessary to mention a mode of acquisition that applies by Torah law.
נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת. מְנָהָנֵי מִילֵּי? אָמַר חִזְקִיָּה: דְּאָמַר קְרָא: ״וַיִּתֵּן לָהֶם אֲבִיהֶם מַתָּנוֹת וְגוֹ׳ עִם עָרֵי מְצֻרוֹת בִּיהוּדָה״.
§ The mishna further states that property that does not serve as a guarantee, i.e., movable property, can be acquired along with property that serves as a guarantee, i.e., land. The Gemara asks: From where is this matter derived? Ḥizkiyya said that the verse states: “And their father gave them great gifts, of silver, and of gold, and of precious things, with fortified cities in Judah” (II Chronicles 21:3). This indicates that he gave them movable items together with the cities. He did not need to give the items to them directly, as he was able to transfer these gifts by means of the cities he gave them.
אִיבַּעְיָא לְהוּ: בָּעֵינַן צְבוּרִים, אוֹ לָא? אָמַר רַב יוֹסֵף: תָּא שְׁמַע: רַבִּי עֲקִיבָא אוֹמֵר: קַרְקַע כׇּל שֶׁהוּא חַיֶּיבֶת בַּפֵּאָה, וּבַבִּכּוּרִים,
A dilemma was raised before the Sages with regard to this matter of acquisition of movable property by way of land: Do we require that this movable property be actually piled on the land that is sold or not? Rav Yosef said: Come and hear a proof from the following mishna (Pe’a 3:6). Rabbi Akiva says: The owner of any amount of land is obligated in pe’a and in first fruits,
וְלִכְתּוֹב עָלֶיהָ פְּרוֹסְבּוּל, וְלִקְנוֹת עִמָּהּ נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת. וְאִי אָמְרַתְּ בָּעֵינַן צְבוּרִים, כׇּל שֶׁהוּא לְמַאי חֲזֵי?
and if the debtor possesses land of any area the creditor can write a document that prevents the Sabbatical Year from abrogating an outstanding debt [prosbol] for it so that his loans will not be canceled in the seventh year, and he can acquire property that does not serve as a guarantee along with it. And if you say that we require the movable property to be piled on the land, for what is land of any size fit? What can be piled on a tiny spot of land?
תַּרְגְּומַאּ רַב שְׁמוּאֵל בַּר בִּיסְנָא קַמֵּיהּ דְּרַב יוֹסֵף: כְּגוֹן שֶׁנָּעַץ בָּהּ מַחַט. אֲמַר לֵיהּ רַב יוֹסֵף: קְבַסְתַּן! אִיכְּפַל תַּנָּא לְאַשְׁמוֹעִינַן מַחַט? אָמַר רַב אָשֵׁי: מַאן לֵימָא לַן דְּלָא תְּלָה בָּהּ מַרְגָּנִיתָא דְּשָׁוְויָא אַלְפָּא זוּזֵי.
Rav Shmuel bar Bisna interpreted it before Rav Yosef as follows: For example, if one stuck a needle into a tiny patch of land, which he sold by means of the land, the needle is acquired. Rav Yosef said to him: You disgust me [kevastan]. Did the tanna go to all that trouble just to teach us that a needle can be acquired by means of land? Rav Ashi said: Who shall say to us that he did not hang a pearl worth one thousand dinars on the needle? One can acquire an item of high value through land of this size. In any event, the question of whether or not the movable property must be piled onto the land has not been resolved.
תָּא שְׁמַע, אָמַר רַבִּי אֶלְעָזָר: מַעֲשֶׂה בְּמָדוֹנִי אֶחָד שֶׁהָיָה בִּירוּשָׁלַיִם שֶׁהָיוּ לוֹ מִטַּלְטְלִין הַרְבֵּה, וּבִיקֵּשׁ לִיתְּנָם בְּמַתָּנָה. אָמְרוּ לוֹ: אֵין לוֹ תַּקָּנָה עַד שֶׁיַּקְנֵם עַל גַּבֵּי קַרְקַע. מָה עָשָׂה? הָלַךְ וְלָקַח בֵּית סֶלַע סָמוּךְ לִירוּשָׁלַיִם, וְאָמַר: ״צְפוֹנִי זֶה לִפְלוֹנִי, וְעִמּוֹ מֵאָה צֹאן וּמֵאָה חָבִיּוֹת״, וָמֵת, וְקִיְּימוּ אֶת דְּבָרָיו.
Come and hear, as Rabbi Elazar said: There was an incident involving a certain Madonite [Madoni] who was in Jerusalem, as he had a great deal of movable property and wished to give it as a gift. He was ill and did not have time for the recipient to acquire the property by pulling. The Sages said to him: One in this situation has no remedy but to transfer them by means of land. What did he do? He went and acquired a beit sela, apparently meaning land the size of a sela coin, near Jerusalem and said: This northern portion of the beit sela is given to so-and-so, and with it one hundred sheep and one hundred barrels. And the Madonite died, and the Sages fulfilled his statement and gave the gifts.
וְאִי אָמְרַתְּ בָּעֵינַן צְבוּרִים בָּהּ, בֵּית סֶלַע לְמַאי חֲזֵי? מִי סָבְרַתְּ בֵּית סֶלַע, סֶלַע מַמָּשׁ? מַאי סֶלַע – דִּנְפִישׁ טוּבָא. וְאַמַּאי קָרוּ לֵיהּ סֶלַע – דִּקְשֵׁי כְּסֶלַע.
And if you say that to acquire movable property by way of land we require that the property be actually piled upon it, for what is a beit sela fit? It is impossible to pile one hundred sheep and one hundred barrels on top of such a small plot of land. The Gemara rejects this argument: Do you maintain that a beit sela is referring to a place that is actually the size of a sela coin? No; rather what is the meaning of the term sela? It is referring to a place that is very large and that could hold the many gifts. If that is true, why did they call it sela? This name indicates that it was hard as rock [sela].
תָּא שְׁמַע, דְּאָמַר רַב יְהוּדָה אָמַר רַב: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁחָלָה בִּירוּשָׁלַיִם – כְּרַבִּי אֱלִיעֶזֶר, וְאָמְרִי לַהּ: בָּרִיא הָיָה – כְּרַבָּנַן,
Come and hear a proof from a different source, as Rav Yehuda says that Rav says: There was an incident involving a certain person who became sick in Jerusalem, and the assumption that he became sick is in accordance with the opinion of Rabbi Eliezer, who says that a person on his deathbed can transfer property only by means of an accepted standard act of acquisition. And some say he was healthy, and that assumption is in accordance with the opinion of the Rabbis that a person on his deathbed can transfer property by means of speech alone, whereas a healthy person requires an accepted act of acquisition.
שֶׁהָיוּ לוֹ מִטַּלְטְלִין הַרְבֵּה וּבִיקֵּשׁ לִיתְּנָם בְּמַתָּנָה, אָמְרוּ לוֹ: אֵין לוֹ תַּקָּנָה עַד שֶׁיַּקְנֵם עַל גַּבֵּי קַרְקַע. מָה עָשָׂה? הָלַךְ וְלָקַח בֵּית רוֹבַע סָמוּךְ לִירוּשָׁלַיִם, וְאָמַר: ״טֶפַח עַל טֶפַח לִפְלוֹנִי וְעִמּוֹ מֵאָה צֹאן וּמֵאָה חָבִיּוֹת״, וָמֵת, וְקִיְּימוּ חֲכָמִים אֶת דְּבָרָיו. וְאִי אָמְרַתְּ בָּעֵינַן צְבוּרִים, טֶפַח עַל טֶפַח לְמַאי חֲזֵי?
The incident happened as follows: This man had a great deal of movable property and he wished to give it away as a gift. The Sages said to him: In this situation one has no remedy but to transfer movable property by means of land. What did he do? He went and acquired land the size of a beit rova near Jerusalem and said: This square handbreadth is given to so-and-so, and with it one hundred sheep and one hundred barrels. And he died, and the Sages fulfilled his statement. And if you say that we require that the property be piled on the land, for what is a square handbreadth fit? Is it possible to place all of these items in such a limited space?
הָכָא בְּמַאי עָסְקִינַן, לִדְמֵי. הָכִי נָמֵי מִסְתַּבְּרָא, דְּאִי סָלְקָא דַעְתָּךְ מֵאָה צֹאן וּמֵאָה חָבִיּוֹת מַמָּשׁ, נַיקְנִינְהוּ נִיהֲלֵיהּ בַּחֲלִיפִין.
The Gemara rejects this: With what are we dealing here? It is with money, i.e., he sought to give the value of the barrels and sheep, and money of this amount can be placed on a small plot of land. The Gemara comments: So too, it is reasonable that this incident involved money. As, if it enters your mind to say that it involved an actual group of one hundred sheep and one hundred barrels, let him transfer them to the recipient through an act of symbolic exchange. If the incident involved money, which cannot be transferred by symbolic exchange, he had no recourse but to acquire the land.
וְאֶלָּא מַאי, לִדְמֵי? נַיקְנִינְהוּ נִיהֲלֵיהּ בִּמְשִׁיכָה! אֶלָּא: דְּלֵיתֵיהּ לִמְקַבֵּל מַתָּנָה. הָכִי נָמֵי, דְּלֵיתֵיהּ לִמְקַבֵּל מַתָּנָה.
The Gemara raises a difficulty against this argument: Rather, what will you say, that this is referring to money, which cannot be acquired through symbolic exchange? Even so, he still could have acted differently: Let him transfer it to the recipient through pulling. Rather, you are forced to say that the recipient of this gift was not present, and the man wanted to grant him possession of it without the recipient having to perform a physical act of acquisition. So too, it is possible that the recipient of the gift was not present, and he was unable to transfer it to him through symbolic exchange. Consequently, there is no proof that the incident involved money.
וְנִיזְכִּינְהוּ נִיהֲלֵיהּ אַגַּב אַחֵר? לָא סָמְכָה דַּעְתֵּיהּ, סָבַר שָׁמֵיט וְאָכֵיל לְהוּ.
The Gemara asks: Is there no other way to perform this acquisition? But let him transfer it to him by means of another person, i.e., another can pull the property on behalf of the recipient. The Gemara answers: The giver did not rely on that option, as he feared that the third party might seize it and consume it or use the property in some other manner. The giver wanted to be sure that the acquisition would be completed in full.
וְאֶלָּא מַאי ״אֵין לוֹ תַּקָּנָה״? הָכִי קָאָמַר: לְמַאי דְּלָא סָמְכָה דַּעְתֵּיהּ – אֵין לוֹ תַּקָּנָה עַד שֶׁיַּקְנֵם עַל גַּבֵּי קַרְקַע.
Rather, what then is the meaning of the statement: He has no remedy? Even if he did not want to use the option of a third party, it was certainly available to him. The Gemara explains that this is what Rav was saying and meant in his description of this incident: In accordance with his decision that he does not rely on another person and does not want to transfer property by means of anyone else, in this situation one has no remedy but to transfer movable property by means of land. In summary, no decisive proof has been cited as to whether or not it is possible to acquire movable property by means of land when the items are not piled upon the land.
תָּא שְׁמַע: מַעֲשֶׂה בְּרַבָּן גַּמְלִיאֵל וּזְקֵנִים שֶׁהָיוּ בָּאִים בִּסְפִינָה, אָמַר לָהֶם רַבָּן גַּמְלִיאֵל לַזְּקֵנִים: עִישּׂוּר שֶׁאֲנִי עָתִיד לָמוֹד
Come and hear a proof from the following mishna (Ma’aser Sheni 5:9): There was an incident involving Rabban Gamliel and other Elders who were traveling on a ship. Rabban Gamliel said to the Elders: One-tenth of produce that I will measure out and separate in the future from the produce of my fields
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