Siman 198

By Torah law, money acquires even with movable property, for most acquisitions are performed with money, and regarding consecrated items it is explicitly written that they are acquired with money, as in the case of one who redeems his field from the sanctuary it is written: "then he shall add the fifth part of the money of your valuation unto it, and it shall be established to him," and we find no distinction in this matter between a commoner and the sanctuary. However, the sages enacted for the benefit of the buyers, as will be explained, that movable property is not acquired with money, but rather through pulling, delivery, or lifting, each according to its law as explained in siman 197; and with this, he acquires even without the giving of money. This is not like uprooting a matter from the Torah, for behold, regarding acquisitions, merchants may establish among themselves any acquisition they desire, as will be explained in siman 201, for this is not among the commandments that one is obligated to perform in a specific way. The essence of the acquisition is the reliance of the mind of the buyer and the seller to finalize the acquisition, and therefore an asmachta does not acquire even if there was a complete acquisition, because they did not finalize in their hearts with a complete will to acquire. And with whatever they are accustomed to performing an acquisition, their minds rely upon it. Therefore, for the sake of the order of the world, our sages, of blessed memory, said that pulling alone acquires, or lifting, or delivery, and not money. And if he transferred to him land and movable property with money, it will be explained with the help of Heaven at the end of siman 203. And regarding movable property, when he gave money today and after several days performed pulling, the acquisition begins from the time of the pulling and not before.

And why did they ordain thus? Because they feared that perhaps the buyer would give the money for the object, and before he takes it from the seller, the object will be lost through some accident, such as a fire breaking out or bandits coming; and if the object were in the domain of the buyer, the seller would delay a bit and not rescue it. Therefore, they established it in the domain of the seller so that he would exert effort and rescue the object, as it is still his, and if it is lost, he will be obligated to return the money. And one should not say: behold, even according to this ordinance, there is this same fear regarding the money—for when he gave the money and did not perform meshikhah on the object, and the money is still in the domain of the buyer, as will be explained, and when there is some accident regarding the money, the seller will not trouble himself and will not rescue it. However, the matter is understood: that money is easy to rescue and he will not be lazy, but merchandise and produce require effort to rescue them, and therefore the Sages, of blessed memory, feared regarding this. And if you ask: why did they uproot the kinyan of money entirely? Let them ordain that specifically meshikhah and money together should acquire, and not one without the other. However, they were concerned for the ordinance of commerce, so that they would not require two things for every kinyan. And furthermore, if we were to say that meshikhah alone does not acquire, sometimes when the buyer performs meshikhah and has not yet given money, and some cause occurs to him, he will not trouble himself to rescue it and will say to the seller: "Your merchandise was burned." And one also should not raise a difficulty: that according to this, how do we acquire with kinyan sudar alone, or with situmta in siman 201, or with kinyan agav? Let us fear that perhaps the seller will not trouble himself to rescue the merchandise. For it can be said: as long as the seller has not received the money, he is compelled to trouble himself and rescue, as it would be difficult for him to extract the money from the buyer, who would say to him: "You were negligent in this" [Sma]. And if he performed kinyan sudar and gave money and did not perform meshikhah, and a loss occurred, we do not have to fear, for who forced him to give the money before the meshikhah, since the money was not for the purpose of kinyan?

And since the reason is due to the loss of the buyer, therefore, if the house of the buyer was rented to the seller and the purchase is placed there, they established it according to the Torah law that money acquires; for behold, if an accident occurs, he will exert himself and save it, even if he does not dwell there, for behold, he will exert himself to save his house and will also save his purchase. And so too, if the seller rented to the buyer a place in his house and the buyer dwells there, even though the purchase is placed in another room, money acquires; for since it is with him, he will exert himself and save [Tur]. And all the more so if the buyer rented the place where the purchase is placed, he acquires the object and they cannot retract, and even if he did not give money [Shach], for his courtyard acquires for him. And specifically when the place is guarded with the knowledge of the buyer or that he is standing beside that place. And so too, when he borrowed the place where the object is placed, the place acquires the object [ibid.]. And specifically that he lent it to him to use it, but if he lent it to him only for treading of the foot to walk through there, it is not like his courtyard for acquisition, for he only has permission to walk and not to use it [Ritva]. And it also must be guarded with his knowledge or that he is standing beside it. And in siman 200 it will be explained that some say that even when it is guarded with the knowledge of the seller, the buyer also acquires. And some say that specifically when he previously lent him or rented him the place and afterwards sold him the object, but if both came as one, he did not acquire, as I wrote in siman 202 [Shach ibid. subsection 3], and there it will be explained that there are those who disagree on this.

It appears to me that if the purchase is not under the hand of the seller, and not under the hand of the members of his household or his hired hand and his gleaner, even if it is also not under the hand of the buyer—for example, if he sold him wood on the riverbank or in the forest, or merchandise placed in another location under the domain of another—money also acquires. For in this case as well, it is not applicable that the seller will not trouble himself to save it, since it is not under his domain at all, nor under the domain of one hired to him, nor under the hand of the members of his household and his hired hand.

Our teacher, the Rema, wrote that there are those who say that if the movable property was in a place where there is no concern for fire, it is acquired with money. Thus far his words. And so too regarding other accidents if they are not common, in the name of [Sma]. However, the later authorities disagree with this, for the sages did not distinguish in their enactment. And that which was explained previously, that there are those who established it according to Torah law, this refers to a case where it is truly in the domain of another, for the sages, of blessed memory, were only concerned when it is in the domain of the seller and not when it is in the domain of the buyer. But in a place that is under the hand of the seller, even if this place is far from cause for concern, the sages did not distinguish. Therefore, even if the merchandise is secure from fire and from water in the secure houses called "sarants," nevertheless, the sages did not distinguish, and thus the great authorities decided the law. Our teacher, the Rema, further wrote that if they explicitly stipulated that money shall acquire, it is acquired with money. Thus far his words. This applies whether the buyer stipulated or the seller stipulated at the beginning of the transaction and the buyer remained silent, as written in siman 207 [Sma]. And there are those who disagree on this, for a condition is not effective to make an act of acquisition out of something that is not an act of acquisition, as this is like a condition that one should acquire with mere words, which certainly does not acquire. The condition is only effective in a place where the act of acquisition is good but there is a lack of resolve, such as with an act of acquisition of money for land in a place where they are accustomed to write a deed, as written in siman 190, section 25, but not to make something that is not an act of acquisition into an act of acquisition [Shach in the name of the Ritva]. And it is not similar to an act of acquisition that the merchants are accustomed to, which is effective, for that is an established custom, but not what some individual might do as an act of acquisition for himself. And there are those who say that in this matter one should rule like our teacher, the Rema, since from the Torah money is a complete act of acquisition, and the sages, of blessed memory, only enacted meshikhah for the benefit of the buyer, he can say "I am not pleased with this enactment," as written in Even HaEzer siman 92 [Bach]. And such is the primary ruling in law [Ktzot HaChoshen].

Some say that if Reuven leased movable property to Shimon and Shimon gave him the rental payment, even though he has not yet performed a meshikha, nevertheless Shimon acquires it. For regarding a lease, they established it according to the Torah law that it is acquired with money, since in this case there is no concern that he might say to him "your movable property was burned," because since the object itself belongs to him, he will exert effort and save it. And such is the primary ruling in law.

Some say that even though the sages uprooted the kinyan of money, nevertheless, if the seller betrothed a woman with this money, we are concerned for the kiddushin, since according to the Torah it is a kinyan and the money is his [Sma]. And there are those who disagree regarding this, for in matters of kinyanim, everything that the sages enacted is like the law of the Torah. Our teacher, the Beit Yosef, wrote similarly in Even HaEzer siman 28 regarding the matter of ma'amad sheloshtan [see there in the Be'er Sheva subsection 3]. And so it is explicitly implied in the Yerushalmi of Ma'aser Sheni chapter 4, halacha 3 [and so it is implied from Rashi in Bava Metzia 96b, s.v. "nimalu"]. However, when the seller is permitted to use the money according to what will be explained, certainly his kiddushin are kiddushin. And after one of them has received the "Mi ShePara," it is obvious that his kiddushin are not kiddushin [Netivot HaMishpat]. See what I have written in Even HaEzer siman 28, section 63 and 64.

It has already been explained in the previous siman that hagbahah acquires in every place, and meshikhah requires that he pull it into his own domain, or into a domain belonging to both of them, or into a simta. Mesirah is the opposite, specifically in a domain that is not his own; and when he hands it over to him in the domain of others, the owner of that domain must not give him permission to acquire therein, for if so, it would be like his own. Hagbahah is superior to meshikhah, and meshikhah to mesirah. An object fit for hagbahah is not acquired through meshikhah, and certainly not through mesirah; and an object fit for meshikhah is not acquired through mesirah. However, hagbahah acquires even an object whose manner is not to be lifted, because it is a superior kinyan. Regarding the measure of hagbahah, some say it requires three tefachim, for less than three is considered lavud; and some say a tefakh is sufficient, since it is in his hand, it is as if it is in his domain. Hagbahah by means of his strength is considered hagbahah as if in his hand [Shach], and for this, it certainly requires three tefachim [it appears to me]. Meshikhah requires that he pull the entire object and remove it from the entire place where it was resting. Even though regarding a living creature it is sufficient to uproot a hand and a foot, this is because a living creature moves on its own afterward. Therefore, when the object was resting in a simta, he must pull it its full length, so that its end reaches the place where its front was. But when it was in the public domain and he pulled it from there to a simta or to his own domain, even though he did not pull it within his domain or the simta its full length, it is sufficient, since he uprooted it from the entire place where it was at first. However, it appears to me that regarding meshikhah from the domain of the seller, even if he pulled it entirely from its place, nevertheless, if a portion still remains in the domain of the seller, he does not acquire [and with this, that which we left there in further study from Shabbat 91b is well settled; and delve into this]. Mesirah requires handing over from hand to hand or by his command, and he shall grasp it in his hand even if they did not move from its place. The laws of hagbahah will be further explained in siman 269.

If the seller told him to acquire through this kinyan, another kinyan is not effective, even a kinyan more significant than the one he commanded him. However, the seller cannot command him to acquire through something that is not a kinyan for this object, or to acquire through mesirah or through meshikhah in a place where one does not acquire through them, such as meshikhah in a public domain or mesirah in his own domain.

Items that are fit to be lifted are only acquired through hagbahah. Even if one gathered many small items and made them into a single bundle that is not fit for lifting, he must untie it and lift each one individually, or two and three together. How so? For example, one who gathers thin wood or flax and the like and made from them a large load, they are not acquired through meshikhah, for it is possible to untie them and lift them. However, if there was a loaded sack of walnuts, almonds, peppers, grain, and the like, where it is not the practice to move each one individually, this is acquired also through meshikhah. And there are those who disagree even regarding wood and flax, and they hold that even with them they are acquired through meshikhah, because there is a burden to untie them and lift each one individually. And this matter depends on the nature of the merchandise; and certainly, one who buys merchandise where many items are placed in one vessel, and this vessel must be transported further, he certainly acquires it when he pulls the full vessel as it is.

Heavy items that it is impossible for one person to pull, such as a ship that is only pulled by many people, and similarly beams and wood when they are sold in bundles, or merchandise sold as a bundle and such is its manner—they did not require pulling for them; rather, they are acquired through masirah when they stand in a public domain or in a domain that belongs to neither of them. However, if the seller said to him, "Go, pull and acquire," he only acquires through pulling, and he must hire people and pull with them. Therefore, if the ship is standing in a public domain and the seller was not particular about how he should acquire, and he said to him without specification, "Go, take hold and acquire," he should grasp the head of the ship in his hand and he acquires through this. And so too with beams, wood, and a bundle of merchandise. And when he says to him, "Pull and acquire," he must pull it entirely and bring it into a domain in which pulling effects acquisition. And if it stands in a side-alley or in a courtyard belonging to both of them, it is necessary to acquire it through pulling, for masirah is not effective there. And the middle of the river has the status of a public domain, and near its bank has the status of a side-alley, and he must pull it to the bank of the river [Ketubot 85:].

And just as the insistence of the seller prevents the acquisition, so too the beginning of the buyer's action prevents it even if the seller does not insist. How so? For example, if the ship was standing in a public domain and the seller said to him, "Go and acquire it," and the buyer went and began to pull it, he has not acquired it until he pulls it into a side alley. For since he began with pulling, he has revealed his intent that he does not wish to acquire it through that which he holds it, which is the kinyan of masirah, but rather through pulling; therefore, he must complete the kinyan that he began. And some say further that regarding a ship, if it must be acquired through pulling, it is only acquired through the manner of its pulling, such as when it is resting in water or in a marsh of water that is in a side alley or in a domain belonging to both of them, but on dry land he does not acquire it until he lifts it. And some say that even masirah is not effective for a ship in a public domain on dry land unless it is resting on the water. Therefore, the best method for the kinyan of a ship when it is on the water is for the seller to say to the buyer, "Hold onto it and acquire," and the buyer shall hold it by its prow or by its side and intend to acquire it through this, and it is a kinyan of masirah.

According to what has been explained, that mesira is not effective in a place where they have permission, therefore in large places where goods are placed on the riverbank under the buildings standing there, or the beams and wood placed on the riverbank, mesira is not effective there since the goods are placed there with permission and it is like his domain. Similarly, in the stations on the railroads, the kinyan of mesira is not effective there since the merchants have permission to place their goods there, and they must perform hagbah or kinyan sudar. And those who purchase a large wagon of goods, which they call a "wagon," it is impossible to perform any kinyan on it except for kinyan sudar. However, if there is some custom there among the merchants regarding the methods of kinyan, they shall act according to their custom, as I wrote in siman 201. And it is possible that in those places no kinyan is required at all, as it is acquired there by the law of chatzer; since according to the law of the kingdom they designate a place for the merchants to place their goods on the riverbank or in the station houses, and no other person has the power to push him out from this place as long as his goods are placed there, it is not similar to a simta, for it is literally like his chatzer. And when he sells the goods to another, the place becomes the chatzer of the buyer, and his purchase and his chatzer come as one. And even though according to the opinion of the Shach in siman 202, subsection 3, it is not effective when they come as one, as I wrote in section 3, nevertheless the great later authorities disagree with him, as will be explained there. However, the buyer must stand there so that it shall be a chatzer hamishtameret with his knowledge, for these places are a chatzer she-eina mishtameret, and see what I wrote in siman 200, section 8. And the kinyan of a Cuthean in movable property was explained in siman 194 [and there is no difficulty from Bava Metzia 23b regarding the riverbank, where Rashi explained: and he leaves it on the riverbank etc. and sometimes he forgot, thus far his words; for if its law is like a chatzer, what does forgetting help? For one can say that in their time this law did not exist, and look closely].

Even though money does not effect acquisition, nevertheless, when one has given money and has not yet performed a meshikhah, it is permitted for the seller to use the money, for he received them in order to complete the purchase for the buyer and received them to spend them for his needs. Therefore, the seller is liable for their responsibility even if they were lost through an unavoidable accident, as they are like a loan. And even if the seller retracted and said to the buyer, "Come and take your money," nevertheless, as long as he has not received the mi she-para, he is liable for their responsibility, for who is to say that he will accept the mi she-para? But after he has received the mi she-para and said to him afterward, "Come and take your money," he is exempt from unavoidable accidents. And this is specifically if he said it to him afterward; but if he said to him beforehand, "Take your money," and they went to beit din and he received the mi she-para, and he did not say to him afterward, "Take your money," he is liable for unavoidable accidents [Beit Yosef]. And some say that even if he received the mi she-para and said to him afterward, "Take your money," he is not exempt from unavoidable accidents unless these specific coins that the buyer gave him are still in existence; but if he spent them and designated others in their place, these coins revert to being like a loan and he is liable for unavoidable accidents until they come into the possession of the buyer. And there is one who says that even if he spent them, since he accepted the mi she-para upon himself and said to him, "Take your money," even though the buyer did not want to receive them, he is exempt.

And all this is when the seller retracted, but if the buyer retracted and the seller said to him, "Come and take your money," since the seller is not subject to "He who punished," the money is with him as a deposit, and if it was stolen or lost he is exempt, and his status is only like a shomer chinam. And in every place where the seller is exempt from accidents in the previous section, his status is only like a shomer chinam [and in Bava Metzia 49b that his status is not even like a shomer chinam, that is according to Rava who ruled like Resh Lakish, but for us, as we establish the law like Rabbi Yochanan, his status is like a shomer chinam, as the Gra wrote in subsection 21]. And there is one who says that his status is not even like a shomer chinam [Mordechai chapter 5 of Gittin, and so wrote the Rosh in Bava Metzia ibid., and so wrote Rabbeinu Yerucham, and I wonder that they did not write this opinion; and it would seem to me that the Rambam and the Shulchan Aruch did not specifically mean theft and loss, and the same would apply to negligence, but the Sma and the Gra did not write so]. And as long as he did not say to him, "Take your money," even though the buyer retracted, nevertheless he is liable even for accidents [Netivot HaMishpat]. And if when he said, "Take what is yours," the buyer said to him, "Let it be a deposit in your hand," his status is like a shomer chinam [ibid.]. And in this there is no difference between the retraction of a seller and the retraction of a buyer, or between one who accepted "He who punished" and one who did not accept, since both of them agreed for the money of their purchase to be in his hand, his status is like a shomer chinam [it appears to me].

When the transaction is finalized in a manner that they cannot retract and the merchandise is in the possession of the seller, there are some of the great authorities who wrote that he is considered a shomer chinam over the merchandise. And there are those who wrote that he is not even a shomer chinam, for it is like "here is the house before you." Our teacher, the Beit Yosef, wrote similarly in the name of Rabbeinu Yerucham, and so it appears to be the primary view. However, if at the time of the acquisition they spoke explicitly that it should be left with the seller until a certain time, his status is that of a shomer sachar until the time they stipulated [it appears to me]. And similarly, if the buyer remains owing money to the seller, if the purchase is not a "sharp sale" and the sale is for the benefit of the seller, his status is that of a shomer sachar; and if it is a "sharp sale," he is exempt [Netivot HaMishpat].