Siman 194

The Rambam wrote in the first chapter of Zekhiyah that a Kuti does not acquire land from an Israelite except with a shetar, and he does not transfer ownership except with a shetar, because his mind only relies upon a shetar. He does not acquire through hazakah nor through money; rather, it is with a shetar that he acquires along with the giving of the money [chapter 1 of Mekhirah], for he is no better than an Israelite who does not acquire with a shetar without the giving of money, as was written in siman 191 [Maggid Mishneh there]. So too, one who acquires from a Kuti, his mind is not reliant until there is a shetar with the money, even in a place where it is not the custom to write a shetar, for the buyer fears that the Kuti will not protest and nullify the sale; but with a shetar, his mind is reliant [Kesef Mishneh there]. According to this, by the essential law, he is equal to an Israelite regarding the acquisition of land, but it is because of the reliance of the mind that the sages, of blessed memory, said that without a shetar there is no acquisition with a Kuti [and the explanation is like the Beit Yosef and not like the Sma, as the Gra wrote in the name of Rabbenu Hai Gaon; however, that which he wrote that by the law it is so is difficult, for did the Rambam not write explicitly "because of the reliance of the mind"].

And there are some of our teachers who hold that his acquisition of land is only through money, either because his entire acquisition is through money, as it is written, "from the money of his purchase" [Rashbam 54b], or because we find regarding the field of Ephron that the acquisition was through money [Tosafot ibid.]. Therefore, in a place where they do not write a deed, they acquire from one another through money alone; but in a place where they write a deed, an Israelite does not acquire from a gentile until he writes the deed for him, for his mind is not at ease without a deed, just as with an Israelite from an Israelite, as written in siman 190. However, a gentile from an Israelite acquires through money alone, for a deed is not an acquisition for a gentile, as we learned the acquisition of a deed from the book of purchase of Jeremiah, and there it was an Israelite [ibid.]. And also through chazakah he has no acquisition of land when he purchases from an Israelite, for we derive chazakah from "and you shall possess it and dwell in it," and it was said to an Israelite [Rashi Gittin 38a].

Therefore, a Yisrael who purchased a field from a Kuti and gave him the money, but has not yet written the deed for him, and another Yisrael came and performed a chazakah in it in the manner that one performs a chazakah in ownerless property, the latter has acquired it in a place where there is no law of the kingdom regarding this. This is because from the moment the Kuti took his money, he removed his authority from the field, and the buyer does not acquire it until the deed reaches his hand; thus these properties are found to be like property that has no owner, and whoever performs a chazakah in them acquires them. And according to the opinion in section 2, this law applies only in a place where they write a deed, but according to the opinion of the Rambam, it is in every place; for since the Kuti does not acquire from or transfer to a Yisrael except with a deed, and when the Kuti received the money he certainly removed his authority and is not concerned that the Yisrael has not yet acquired it, it automatically remains as ownerless property. And this is specifically when the buyer has not yet performed a chazakah in it, but if he performed a chazakah in it before the other performed a chazakah in it, it is obvious that the buyer acquired it by virtue of chazakah in ownerless property, and he is no worse than another. And some say that even if the buyer performed a chazakah after giving the money, if he did not say that he is performing a chazakah in it as ownerless property, the latter acquires it; for the buyer presumably did not rely on any acquisition other than the deed so that the seller would not contest it, as he wants to be secure regarding the money he gave, but the second person who did not give money certainly intends to acquire it from that which is ownerless. And therefore, if the buyer performed a chazakah before he gave the money, he acquires it according to all opinions, for since he has not yet given money, he is no worse than the second person. And our teacher, the Rema, decided according to this opinion.

And our teachers wrote that when the second one acquires it by law, he is obligated to give the buyer the money that he gave to the gentile; for even though he did not acquire the land, nevertheless, it is in his hand by the law of a mashkon until they return his money to him, and a mashkon does not require a kinyan. And although there are those who disagree on this because he did not descend to it by the law of a mashkanta, nevertheless, such is the primary ruling. And even so, although he gave the money to the buyer, the responsibility is not upon the buyer but upon the gentile seller. And if one comes and removes it from the hand of the possessor, he is unable to return to the buyer, for he did not receive the money of his own will; rather, if he can return to the seller, he shall return and claim from him.

And even though according to the law it belongs to the second, nevertheless he is called a rasha, for this is no less than a poor person turning over a cake in siman 237; and even according to the opinion that will be explained there that regarding a find he is not called a rasha, nevertheless since he is obligated to return the money to the buyer, this is not like a find. And nevertheless, it is forbidden for the buyer to endeavor through force to remove it from the second since he is giving him his money, but if he does not give him his money, he is able to endeavor to remove the field from him.

There is one who says that the buyer should be careful that the gentile writes him a deed before he gives him his money, for if he writes it after the receipt of the money, even if he wrote the deed for him before another took possession of it, it is nothing. Since he has already withdrawn upon the receipt of his money, he is like any other person. And according to the "there are those who say" in section 3, it would not be effective even if the buyer takes possession before the possession of the second person, for the reason that was explained there.

Our teacher, the Rema, wrote that a lease from a kutei is acquired with money alone, and likewise if the buyer stipulated for himself that with money alone he acquires it, he acquires it immediately. Thus far his words. And all the more so a kutei from an Israelite. And even according to the opinion of the Rambam in section 1, that there is no acquisition for a kutei except with a deed, this is not from the essential law but rather due to the reliance of the mind, as has been explained. And regarding a lease, it is a daily occurrence that their minds rely upon it, and likewise if the buyer stipulated, behold his mind has relied. [And all that they questioned him on is settled, and the Gra in subsection 11 retracted what he wrote previously regarding the opinion of the Rambam concerning money; and it appears to me that even with chazakah it is so, and examine it closely]:

There is one who says that as long as the koti has not written the deed for him, even the koti seller may retract [Mishneh LaMelekh there]. However, there are those who disagree regarding this, for as against the seller and the buyer it is a complete kinyan; it is only that since he has not yet fully acquired it, it is like hefker in the sense that if another comes and performs chazakah on it, he has acquired it [Netivot HaMishpat]. A koti from a koti acquires land through chazakah [Rashi ibid.] and also through money, as with the field of Ephron. And there are those who say that he only acquires through the chazakah of conquest in war [Tosafot ibid.].

All these matters apply only in a place where there is no fixed law in the dina d'malkhuta, but if according to the dina d'malkhuta it is that no one shall acquire land except for the one who is written in the deed or the one who gives the money, the dina d'malkhuta is the law. And so wrote the Rambam, the Tur, and the Shulchan Arukh.

All of this is regarding land; but regarding movable property, the opinion of most of our teachers is that its acquisition is only through meshikhah, while the opinion of Rashi, of blessed memory, is that its acquisition is only through money [Bekhorot 13b], and the opinion of the Rambam in the first chapter of Zekhiyah is that he acquires whether through money or through meshikhah. The primary ruling follows the opinion of most of the poskim. In Yoreh Deah siman 320, our teachers, the Tur and the Shulchan Arukh, were concerned regarding a bekhor also for the opinion of Rashi, but it is merely a stringency [the Gra, subsection 11] due to the severity of holy items outside the Temple. And there in siman 146, they wrote according to the opinion of most of the poskim that meshikhah acquires. The reason is that since an Israelite acquires from an Israelite with money according to the Torah, and it is written "or acquire from the hand of your fellow," it implies that there is a distinction between your fellow and one who is not your fellow; and since for your fellow it is with money, presumably for one who is not your fellow it is with meshikhah. One cannot say it is with both money and meshikhah, for since for your fellow it is with one, for one who is not your fellow it is also with one [ibid. 13a]. There is no distinction whether it is an Israelite from a gentile or a gentile from an Israelite [the Shach]. It appears to me that the acquisition of mesirah does not apply to a gentile, for this is a rabbinic enactment, as I wrote in siman 197, and we do not find that they enacted this for a gentile. Some of the great authorities wrote that in a place where it is impossible to perform meshikhah, the acquisition of money acquires [Haggahot Ashri the fourth chapter of Bava Metzia and Teshuvot Maimoni, Kinyan siman 5, in the name of the Ri of Vienna]. These great authorities are worthy to be relied upon, especially since according to the opinion of Rashi and the Rambam, this is so according to the fundamental law. This matter can be explained: just as with an Israelite, where according to the Torah he only acquires with money, nevertheless in a place where money is not applicable, such as a gift, he acquires with meshikhah according to the Torah—so too regarding a gentile, whose acquisition according to the Torah is with meshikhah, in a place where it is impossible, such as when the merchandise is at a distance or the like, he acquires with money; and similarly when he sells something for which meshikhah is not applicable.

Acquisition by kinyan chalifin with a kutei is not found explicitly in the Gemara, and the opinion of our teachers the Tosafot is that it is effective, and Rabbeinu Tam performed an action accordingly, as is written in siman 123, section 14 [Tosafot Kiddushin 3a, s.v. "ve-ishah"]. And that which is written in Ruth, "a man drew off his shoe and gave it to his fellow, and this was the testimony in Israel," the intention is not that this testimony is only in Israel, but rather that the verse explains why Boaz performed kinyan chalifin and not another kinyan: because this kinyan was an established custom among all of Israel, and since Boaz wanted that no man should challenge his actions, he therefore performed the kinyan known to all of Israel. And so it is implied in the Yerushalmi, first chapter of Kiddushin, halacha 5, and in Midrash Ruth. And even though there are those who disagree on this, nevertheless the custom is widespread to transfer ownership to a kutei through chalifin, and also kinyan of movables agav karka is effective with a kutei [and that which the Ketzot HaChoshen wrote, that according to the opinion of the Tosafot it is only rabbinic, to be concerned for the Sma in siman 66 regarding the sale of documents, this is not a comparison; and the Beit Yosef in Even HaEzer siman 28 decided that what the sages enacted regarding kinyan of money is like a Torah law, and so it is implied in the Yerushalmi Maaser Sheni chapter 4, halacha 3, "but according to the rabbis here etc. he solved it according to the method of aphiomoth," see there and examine carefully].

Kinyan chatzer regarding a kutei, that his domain should acquire for him, it is clear from the Rishonim that he acquires. One of the great Acharonim hesitated regarding this for the reason that kinyan chatzer, when the owner is not standing next to it, is by way of shlichut, and there is no shlichut for a kutei [Rashak in Teshuvot Na'ot Deshe]. Some of the Acharonim followed after him. In my humble opinion, it seems clear that he has a chatzer, for in the Gemara [Bava Metzia 10b] we say that the chatzer of a minor girl was included because of "yad" (hand), and that of a minor boy because of shlichut. If so, who can say to us that his chatzer was not included because of his "yad"? For behold, regarding the war of Sichon it is written, "and he took all his land from his hand," and his domain is called his "yad." Just as he has a "yad," so too he has a chatzer [see Rashi there]. Furthermore, according to the Ra'avad in chapter 29 of Mechirah, even regarding a minor this is only regarding a metziah. According to the Ran, even the chatzer of a man is because of "yad." According to the Rosh, when he is standing next to it, it is because of "yad." Furthermore, it is possible that the Sages only said this regarding minors because they lack da'at and require a reason why their domain acquires, but regarding a kutei, his chatzer is no worse than all other kinyanim. Even though the Sages said plainly that chatzer was included because of shlichut, even regarding adults, such as the chatzer of theft [ibid.], the intention is that it is no worse than shlichut. They also said there [12a] that chatzer was included because of "yad" and is no worse than shlichut, but it is superior to shlichut. Furthermore, according to the opinion we explained in siman 188 that a kutei has shlichut for a kutei, it is obvious that chatzer is no worse than this. Furthermore, how is it possible to say that it is exactly like shlichut? For regarding shlichut we require "children of the covenant," and is a chatzer a "child of the covenant"? Rather, the intention is that it is like shlichut and not like "yad" in that we do not require him to be standing next to it. This is the primary ruling. Regarding kinyan odita, there is one who says it is a kinyan [Ktzot HaChoshen]. It appears that odita is not a kinyan but rather an admission, and it depends on the credibility of the one admitting, and the dayyanim shall rule according to what they see fit.

All that has been explained—that before the chazaka another Israelite acquires it when he takes possession—this is only regarding land. However, regarding movable property that an Israelite purchased from him and gave him money but had not yet performed meshikha, and another came and performed meshikha, we remove it from him; for as long as he has not performed meshikha, it is still in the domain of the seller, as the acquisition is only through meshikha [Netivot HaMishpat]. And regarding movable property, it is not relevant to say "once the money reached his hand, he is removed," since they are in his possession, which is not the case with land. However, a koti who had a deposit in the hand of Reuven and gave it to Shimon via a document, or if he had a collateral in the hand of Reuven and gave the surplus over the debt to Shimon, Reuven acquires that which is in his hand; for as soon as he gave it to Shimon, he removed himself from this, and Shimon does not acquire through the document, as movable property does not have acquisition through a document [Bava Kamma 79b], and without meshikha he does not acquire, and it is like hefker and Reuven acquires it. Therefore, when he wants to give it to Shimon, he should have him acquire it through kinyan sudar, or he should request of him to receive it from Reuven, and when he did not do so, he caused his own loss. And if the koti asks Shimon if Reuven gave it to him, he is permitted to answer him that he did not give it to him [Sma]. And it is possible that even without his asking, it is permitted for Shimon to exert effort with the koti so that he should extract the surplus from Reuven and give it to him [Netivot HaMishpat]. And that which was explained in siman 86, section 13, that Shimon can redeem the collateral from Reuven, this is simple, for the koti did not give it to Shimon via a document and the surplus still belongs to the koti, and therefore Shimon, since he is also a creditor, acquired the surplus [it appears to me].