Siman 166

One whose wall was adjacent to the garden of his fellow and it fell, and the wall belonged to one of them—since in a garden one does not compel to build, as has been explained in siman 158—and he does not wish to build the wall again, they compel him to clear his stones, for it ruins the garden for him as he cannot sow. And even if he said to the owner of the garden, "Clear them and they shall be yours," they do not listen to him if the other does not desire this, for against his will he cannot transfer ownership to him. And even if he consented, as long as he has not cleared them, his domain has not acquired them for him, even if they are lying entirely in his domain and he said to him, "Clear them and they shall be yours." And even though a person's courtyard acquires for him, nevertheless here he did not acquire, for we say that he did not transfer ownership to him with a whole heart, and he only intended to put him off so that he would not pressure him to clear his stones. But if the owner of the garden performed an action and cleared them based on his statement when he said to him, "Clear them and they shall be yours," and this one retracted and said, "Give me my stones and I will give you the expenses of clearing the stones," they do not listen to him; for since he cleared them and he did not protest against him, we say that he transferred ownership to him with a whole heart. And there are those who say that this is specifically when he cleared them in his presence, but not in his presence there is no proof that he transferred ownership to him. And it appears to me that if he knew that he was clearing his stones, it is like being in his presence [and it is well what the Beit Yosef wrote on the Tur, and his intention is when he knew, and they do not disagree at all, and examine this]. And if he did not know, even according to the first opinion it is nothing. And there are those who learned from this law regarding Reuven who had a collateral in the hand of Shimon, and he pressured him to redeem it, and Reuven said to him, "Let it be yours for your money," Shimon did not acquire, for he only intended to put him off so that he would not pressure him regarding its redemption [Nimukei Yosef, second chapter of Bava Metzia]. And this has already been explained in siman 72, section 54, and that there are those who hesitate about this. And it was explained there that if they performed a kinyan from his hand, he acquires immediately. And so too here, if they performed a kinyan from his hand that he transfers ownership of the stones to him, there is nothing after a kinyan. And it appears to me that even though in every kinyan sudar one can retract while they are still occupied with that matter, as has been explained in siman 195, nevertheless here, immediately when he performs the kinyan, his courtyard acquires for him.