Siman 197

Animals and movable property are acquired through six modes of acquisition: through hagbahah, through meshikhah, through mesirah, through kinyan sudar, through the acquisition of a chatzer and four amot, and through agav land. However, through money, through a document, or through chazakah they are not acquired. The reason regarding money is that our Sages, of blessed memory, ordained that it should not effect an acquisition for the reason that will be explained in siman 198. And a document is because people do not make a document for movable property [Bava Kamma 79b] and they are like mere words [Rashi ibid.]. And chazakah is not applicable, as hagbahah, meshikhah, and mesirah are their chazakah. The laws of kinyan sudar have already been explained, and the acquisition of a chatzer will be explained in siman 200, and the acquisition of agav in siman 202. The laws of hagbahah, meshikhah, and mesirah will be explained before us and in siman 198. And odita is not an acquisition but rather an obligation, and it is not within the category of acquisition except in a borrowed sense:

Hagbahah acquires in every location, even when standing in a public domain or in the domain of another, for since he lifts it with his hand or through his power [Ktzot HaChoshen], he brings it into his domain; for anything that is in a person's hand or through his power is as if it were resting in his house, as was written in siman 269. Meshikhah, however, only acquires when he pulls it into his domain or into a courtyard belonging to both of them, for since he is a partner in the courtyard, he has permission to place his objects there, but not in a domain that is not his. If the owner of the courtyard gave him permission, this is like a courtyard of partners, since the owner of the courtyard gave him permission to place the object there. Similarly, he does not acquire through meshikhah into a public domain, for no person has permission to place his vessels in a public domain for a duration of time. Even if the people of the public domain gave him permission, for the public domain belongs to the whole world and no single person has the power to give permission for this. Similarly in a perforated alleyway, but in one that is not perforated, permission from the residents of the alleyway is effective [it appears to me]. And in a simta, which is to the side of a public domain and is like a corner adjacent to the public domain and is not a place of passage for the masses except in a time of pressing need, and a person has permission to place his objects there for a short duration, therefore he acquires through his meshikhah to there, and it is considered like his domain regarding acquisition. And the meshikhah requires that he pull the entire object to remove it from the entire place where it was, and to pull it into his domain or into a domain of both of them or into a simta. The Rambam, of blessed memory, wrote in the fourth chapter of Hilkhot Mekhirah: An item that is acquired through meshikhah, if it was in a public domain and the buyer pulled it into his domain or into a simta, once he has removed a portion of the object from the public domain, he has acquired. Thus far his words. The explanation of his words is that even though in meshikhah we require that he pull the entire object, this is that we require that he move all of it from the place where it was resting; but once he has moved all of it from the place where it was resting, even though he only pulled a portion of it into the domain where the acquisition is effective, we have no concern [see Shabbat 92a regarding a bar of metal and in Rashi, and it requires great study]. All the more so when he pulled it from a public domain into his own domain, even if he did not move any amount of it within his domain, he has acquired [Shittah Mekubetzet in the name of the Ramban, Ketubot 31b; and see the Maggid Mishneh there, and delve into it]. And mesirah is the opposite of meshikhah, for it only acquires in a public domain and in a domain that is not his, and not in the domain of the seller [Tur]. The reason is that the matter of mesirah is that he hands it over to him from hand to hand and the buyer grasps it and does not move it from its place. And it is not specifically handing from hand to hand, but rather once he says to him "acquire through mesirah" and he grasps it or a rope tied to it to lead it, it is mesirah and he acquires. Therefore, in a domain that is not his, it is like bringing it into his domain through his grasping that he grasps it; but if it was in his domain, it has not changed at all through his grasping, since before the mesirah it also stood in his domain and he does not move it from its place. Similarly, in the domain of the seller, it is not considered bringing it into his domain through his grasping. And if it is difficult, for if so, in every acquisition of meshikhah, when he begins to pull it from a domain that is not his into his domain, why must he pull it into his domain? Let it be mesirah since he grasps it in a domain that is not his! One can say that since his intention was for an acquisition of meshikhah, another acquisition is not effective, for it is a great principle that in every acquisition one needs intention to acquire it through the specific acquisition that he performs. Also, there are things for which mesirah is not effective, as will be explained. And why did they institute the acquisition of mesirah? Because there are large things that it is impossible to lift or to pull into his domain, such as a ship and the like. Similarly, there are domains where meshikhah is not effective in them, as I have written; therefore they instituted the acquisition of mesirah. And in all acquisitions, it is not effective without the command of the seller, as I have written in siman 192. And know that regarding ownerless property and a lost object, the acquisition of mesirah is not applicable, for who hands it to him? Behold, there is no "other mind" here who hands it to him. And see what I have written in the following siman, section 8.

According to what has been explained, meshikhah is a more significant kinyan than mesirah, for meshikhah brings it into his domain, which is not the case with mesirah; and hagbahah is more significant than both of them, as he lifts it with his hands. The sages enacted that every object should be acquired in the manner that it is normally used, and as long as he has not acquired it in this manner, both of them may retract [Levush]. Therefore, many of our teachers hold that an animal, whether small or large, is not acquired through mesirah because that is not its way, but rather through meshikhah, for such is the way of owners to lead it from place to place, and there is no need to lift them. Some say that regarding a large animal mesirah effects acquisition because such is the way to hand it over to one another. Some say that even regarding a small animal mesirah is effective if it is in the presence of the seller who transfers ownership to him thereby, for even with a small animal it is sometimes the way to hand it over from hand to hand; and furthermore, with any slight movement they are pulled from their place, and their mesirah is like meshikhah. Even though meshikhah is not effective in a public domain, nevertheless, since there is exertion involved, they were lenient [Sma] regarding this mesirah, which also contains the element of meshikhah. According to this, mesirah is also effective for birds [it appears to me]. However, regarding all movable objects that one is able to pull into his domain, mesirah is not effective, as written in siman 198. Regarding hagbahah, an animal is certainly acquired, whether small or large, even though it is not the way to lift them and it is not the way they are used. How can he acquire it thereby? This applies to an inferior kinyan; for example, things whose way is to be lifted are not acquired through meshikhah or mesirah, and things whose way is through meshikhah are not acquired through mesirah. But from mesirah to meshikhah, and certainly to hagbahah, it is obvious that it is effective even when it is not their way, unless he deviated from the intent of the seller. In that case, it is not effective even from an inferior kinyan to a superior kinyan; for example, things whose way is through mesirah or meshikhah, and the seller told him to acquire through meshikhah, and he deviated, whether to an inferior kinyan like mesirah or to a superior kinyan like hagbahah, he has not acquired, for the seller only transfers ownership to him through the kinyan that he told him to acquire with.

How is a beast acquired through meshikhah? It is unnecessary to say if he pulled it and it went, or if he rode upon it and it went and uprooted a foreleg and a hindleg from its place; rather, even if he only called it and it came to his voice, or he struck it with his staff and it ran before him, or he led it with a voice that rebuked it and it moved from its place, once it has uprooted a foreleg and a hindleg, he has acquired it. For when it uproots a foreleg and a hindleg, the entire body is uprooted from the place where it stood. And specifically that he pulls it in the presence of the owners, but if he pulled it not in the presence of the owners, he must say to him, "Go, take hold and acquire." And in siman 271, more of these laws were explained regarding a lost object.

If he sold him ten animals, if the kinyan was via mesirah and all the animals were tied by one halter, and he handed him the halter and he took the rope and grasped it and gave him the payment for all of them, he has acquired all of them. And if he only handed him the payment for some of them, he has only acquired corresponding to his money, as was written in siman 192 regarding land. And if the kinyan was via meshikhah, he must pull all of them into his domain even if he gave the payment for all of them, for behold they are separate from one another; see in siman 203, section 5. And he must pull them in the presence of the owners or that he should say to him, "Go, pull and acquire all the animals." However, one who sells a herd to his fellow or gave it to him as a gift, even though regarding meshikhah he must pull all of them, nevertheless regarding the statement of the seller, since he handed over the mashkhukhit to the buyer—which is the animal that walks at the head of the herd and all follow after it—he does not need to say, "Go, pull and acquire." And if he pulled the herd even not in his presence, he has acquired, for the delivery of the mashkhukhit is like the delivery of a key that was explained in siman 192, where he does not need to say, "Go, strengthen and acquire." And specifically regarding a mashkhukhit and the like is the law so, because it has a connection to the entire herd. But regarding a thing where they have no connection to one another, such as if he sold him one book that is divided into two and handed him one half, and the buyer went and pulled or performed hagbahah on the second half without the knowledge of the seller, he has not acquired; and similarly regarding other objects.

It has already been explained that leading an animal is like meshikhah, even if one leads it by voice. There are some of the poskim who hold, based on the Gemara's sugya [Bava Metzia 8b], that a camel is acquired only through meshikhah and a donkey only through leading, but conversely, there is one of them that is not acquired because it is not its typical manner. Since there is a doubt as to which one is the "one," therefore a camel is not acquired through leading nor a donkey through meshikhah. However, the Rif, the Rambam, and the Shulchan Arukh did not write this law at all, and the reason was explained in siman 271. Regarding riding alone, whether it is a kinyan for all animals, there is a dispute among the poskim; the Tur ruled that it does not acquire, and the Rambam in chapter 2 of Mekhirah ruled that it does acquire. Our teacher, the Beit Yosef, wrote that the opinion of the Rambam is that it must also walk a bit, and according to this, it is possible that there is no dispute here. It appears to me that even according to the one who holds that one acquires through riding alone, this is only with animals that are typically ridden upon, such as a horse and a donkey, but with a cow, an ox, a goat, or a lamb, according to everyone he has not acquired. Therefore, he should lead it with his legs a bit so that it uproots a foreleg and a hindleg from its place. Riding and leading acquire in any location and there is no need to bring it into his domain, for bringing it into his domain constitutes meshikhah [and so wrote the Shittah Mekubetzet]. There are those who disagree on this, and it seems to me that the primary view is like the first opinion.

There are people for whom it is a disgrace to ride in the street, and those people do not acquire through riding in a place where it is a disgrace for them to ride. Therefore, one who sells an animal to his fellow or gave it to him as a gift and said to him, "Acquire it in the manner that people acquire," or if he said to him plainly, "Acquire," if he pulled it into his domain or lifted it, he has acquired it. But if he rode upon it, our teachers, the authors of the Shulchan Aruch, wrote that if the riding was in a field or in a simta, he has acquired it. And if it was in the city in a public domain in a place where the masses do not crowd there, he has not acquired it, because it is not the way of people to ride in the city. Therefore, if he was a distinguished person whose way is to ride in the city, or an extremely lowly person who is not meticulous about his conduct in the city and rides, such as those occupied with the raising of animals or slaves, or if it was a woman, or if it was in a public domain in a place where the masses crowd there, behold, he acquires through riding, provided that it walks with him. Thus far their words. And this is according to the custom of their land, but in our land, it is a disgrace for an average person, and all the more so for a distinguished person, to ride on a horse in any place, and all the more so a woman, and they do not acquire through riding even with leading it by foot, unless they are people whose way is to ride and it is their way to ride in every place. And in the Eastern lands, even today, riding is a way of honor as in ancient times, and therefore the judges in every place shall judge according to its custom.

One who says to his fellow, "pull and you shall acquire" or "strengthen and you shall acquire," and he went and pulled or strengthened, he has not acquired, for the implication is that he should acquire in the future and he has not yet transferred it to him. The same law applies when he says, "pull this object to acquire it," for the implication is for the future. Rather, he must say, "pull and acquire" or "strengthen and acquire," for every language of kinyan must be in the present tense, and not in the past and not in the future. This is not similar to our deeds which are written in the past tense and are nevertheless valid, as I wrote in siman 191, section 5; it is different there, for the language of the deed proves that he transfers it to him now, as I wrote there. And although in the language of Scripture we find the present tense in the form of the past tense, as it is written, "I have given the money for the field, take it from me," and likewise the present tense can be in the form of the future tense, nevertheless, regarding the essence of the kinyan at the time of his transfer, he must use clear language. However, when the buyer says to the seller, "I shall pull and let it be acquired by me," and he said to him, "yes," it is effective, for the buyer is forced to speak thus, as he requests of him that it should be acquired by him through this pulling [see Maggid Mishneh and Lechem Mishneh, chapter 2 of Mechirah, and the objection of the Ra'avad is settled]. But the seller who speaks to him in the language of command should have said "and acquire." Therefore, it appears to me that when the buyer refuses and the seller requests of him to complete the kinyan and says thus to him, it is a kinyan, for his intention is that he requests of him that he acquire through this pulling.

One who says to his fellow, "Pull this cow, but do not acquire it until after thirty days," and he pulled it, he has not acquired it; for at the time the kinyan takes effect, his pulling has already ceased. And even if it stands on the thirtieth day in the courtyard of the buyer, it is because the kinyan then would be by virtue of courtyard and not by virtue of meshikhah, for meshikhah is when one pulls from the domain of the seller to his own domain, and the seller told him to acquire through meshikhah and not that his courtyard should acquire for him [Netivot HaMishpat]. And some say that in such a case he has acquired [the Ra'avad there, chapter 3], for even the intention of the seller is perforce thus: "Now pull it into your domain, and after thirty days your courtyard shall acquire it for you," since he knows that he will not be pulling it then. And if he said to him, "Acquire from now and after thirty days," he has acquired even if it is standing in a marsh on the thirtieth day, for this is like one who transferred it from now on a condition, and when the condition is fulfilled, the kinyan is established retroactively. And so too with "from now," for anyone who says "on condition" is like one who says "from now," and "from now" alone is no worse than a condition alone. And the explanation is that from now he transfers the body to him, and the fruits after thirty days, as in that case in siman 257, see there. And even if it is standing on the thirtieth day in a public domain, it is a kinyan for this reason [Shach and Netivot HaMishpat, and the difficulty of the Taz is answered].