Siman 202

There is another method of acquisition for movable property, and that is that they are acquired by means of land; for if one sold or gave land and movable property to his fellow, once his fellow has acquired the land through one of the methods by which land is acquired, the movable property is also acquired to him by means of them in any location they may be, even if they are not piled within the land. And this matter the sages, of blessed memory, learned from that which is written regarding the sons of Jehoshaphat: "And their father gave them many gifts, of silver and of gold and of precious things, with fortified cities in Judah" [II Chronicles 21:3]. And from that which is written "with," it implies that he gave them the mentioned movable property by means of the lands of the fortified cities. Therefore, they said that movable property is acquired by means of land, whether both were in a sale, whether both were in a gift, whether the land was in a sale and the movable property in a gift, whether the movable property was in a sale and the land in a gift, or if the land was in a rental or a loan and the movable property was in a sale or a gift [Shach]. Since he acquired the land, he acquired the movable property. And likewise, when the movable property is in a rental or a loan, they are acquired by means of land, for there is no difference between a sale and a rental [so it appears to me, and so it should be in the Rema, and see Shach]. And also regarding the matter of a lien it is effective [Bava Batra 44b], and as I wrote in siman 113.

In what case are they acquired agav karka without any speech from the seller regarding the movables? When the movables are piled on that land which he is transferring to him, for since he sold him both of them and they are resting there, and he performed a chazakah on the land by the command of the seller, it is as if they are part of the body of the land. But if the movables are in another place, he must say to him: "Acquire such and such movables agav this land," and even if the movables were in another country it is effective. And if he did not say so to him, he has not acquired the movables. And some say that even when they are piled within it, he must say "acquire agav karka," and our teacher, the Rema, ruled accordingly. And this is when the land is not guarded for the knowledge of the buyer, but when it is guarded for his knowledge, he acquires the movables by the law of chatzer [Sma] without an agav karka acquisition, and his chatzer and the acquisition of the movables through the chatzer come as one. And some say that specifically when he performs the chazakah on the land in the presence of the seller does he also acquire the movables by the law of chatzer, but not in the presence of the seller; rather, if he said to him "go, perform chazakah and acquire" and did not say to him that he should also acquire the movables, his intention was not that he should also acquire the movables through this. And granted that the acquisition of chatzer is like the acquisition of meshikhah or hagbahah, yet even with them the seller must say "go and acquire," and he only said it to him regarding the land. And there is one who says that when he gave him the money for all of them, he does not need to say "agav," and when he did not give it, he must say "agav" [Beit Yosef in the name of Rabbeinu Yerucham], for when he gave the money for all of them, presumably the intention of the seller was that he should also take possession of the movables. But when he said to him "acquire agav karka," certainly we do not require the giving of money, unless he is coming and going for the money as has been written in siman 190.

There are those who say that specifically the language of "agav" [is effective], but the language of "im" (with), such that he says to him, "acquire the land for yourself and acquire the movables with it," is not effective. For the language of "im" implies that the kinyan for both of them is equal, whereas in truth the kinyan is only on the land and the movables are acquired through agav. And that which is written regarding the sons of Jehoshaphat, "with fortified cities," it is not that he granted [them] to them with this language, but rather the verse relates that he gave to them in one kinyan, but the kinyan was through agav [Sma]. And there are those who disagree and hold that it is all one, and even the language of "im" implies that they are acquired by means of it, for "im" is a language of secondary status, that they are secondary to the land. Regarding the legal ruling, it is difficult to decide, given that all the Rishonim did not make this fine distinction [and from the words of the Yam Shel Shlomo, Kiddushin chapter 1, siman 46, it implies that he agreed with the first opinion, and so it appears from the Taz].

All types of movable property are acquired by way of land, even coins, animals, and documents. However, land is not acquired by way of land, even when land is piled atop land, such as if he said to him: "Acquire the land beneath the cellar and take possession of it, and by way of it you shall acquire the land above the cellar." For we do not find the acquisition of "by way of" except regarding movable property, and all lands are acquired without "by way of" when he has given the payment for all of them, as has been explained in siman 192.

And regarding slaves, we hold that according to Torah law their status is like land, for the verse compared them to a possession; but according to rabbinic law, since they are not fixed in one place like lands, their status is like movable property. And regarding acquisition by chazakah, it was explained in siman 192 as well that slaves are not similar to lands, for regarding lands, even when they are in ten places and he performed chazakah in one of them, he acquires all of them when he gave the payment for all of them; but regarding lands and slaves, he does not acquire the slaves through the chazakah of the lands unless they are standing within it and he gave the payment for all of them. And the reason is because they move, they are not similar to actual land. And so too regarding acquisition by agav, he acquires the slaves by means of the land even when he did not give money if they are standing within it, for regarding the matter of agav they are judged as movable property. And even though regarding movable property we do not require that they be within the land as I have written, nevertheless, because they move, they are not similar to actual movable property. And even though animals also move and are acquired through agav even when they are not standing within it, this is because they do not have intellect and are similar to other movable property, which is not the case for slaves. And one should not ask why for chazakah their primary status is like land and for acquisition by agav their status is like movable property, for the reason is that chazakah is an acquisition explained in the Torah, and according to Torah law their status is like land, but acquisition by agav is rabbinic, from the words of tradition, therefore their status is like movable property. And even though for chazakah their status is like land, nevertheless, if he performed chazakah on the slaves, he did not acquire land even if the slaves are within the land and even if he gave the payment for all of them, for their chazakah is not powerful enough that the land should be acquired through their chazakah. And certainly through agav one cannot acquire land through the acquisition of slaves, for land is not acquired through agav. And if he sold him slaves and movable property, the chazakah of the slaves does not acquire the movable property, nor does the meshikhah of the movable property acquire the slaves through agav, for movable property is not acquired through agav of movable property. But if the movable property is upon the slave and the slave belongs to the buyer, or he is acquiring the slave to him now, they are acquired through the law of chatzer, for his slave is considered like his chatzer; for just as in a chatzer he has permission to place his objects there, so too upon his slave. And even if he is only acquiring the slave to him now, the acquisition of the movable property and his chatzer come as one. However, it must be guarded by the knowledge of the buyer and not by his own knowledge, such as if he is sleeping and standing at his side, for if not so, since the slave is a sentient being, he guards himself and is not guarded by the knowledge of his owner. And it also must be that he is bound, for if not so, it is a moving chatzer, and a moving chatzer does not acquire. And the Rambam, of blessed memory, holds that we do not require him to be sleeping, for even when he is awake he is guarded by the knowledge of his owner, and we only require him to be sleeping regarding a get because it is a disadvantage to her, as I have written in Even HaEzer siman 139.

There are those who sow various types of seeds in vessels, placing soil in the vessel and perforating the vessel at its base so that it may draw nourishment from the ground, and this is what is called in the Gemara an "atzitz nakuv" (perforated pot), and their law is like land for all matters, while the vessel itself has the law of movable property. Therefore, if one person had an atzitz nakuv and the seeds within it belonged to another, if the owner of the vessel transferred ownership of his vessel to the owner of the seeds, once he has performed meshikhah, he has acquired it. But if the owner of the seeds transferred ownership of the seeds to the owner of the vessel, he has not acquired them until he performs chazakah on the seeds themselves like a chazakah of land. And if the vessel and the seeds belong to one person and he sold the whole thing to another, if he performed chazakah on the seeds as a chazakah of land, he has also acquired the vessel through the acquisition of agav. But if he performed meshikhah or hagbahah on the vessel, he has acquired the vessel but not the seeds. And if he performed chazakah on the vessel by doing work with it as one does with a chazakah of land to acquire the vessel and the seeds, he has acquired neither the vessel, for movable property is not acquired through a chazakah of land, nor has he acquired the seeds, since he did not perform a chazakah on them. And this applies specifically to an atzitz nakuv, but one that is not perforated, even the seeds have the law of movable property. And even with a perforated one, it is only like land when it stands upon the ground, but if it stands upon pegs, and certainly if upon a table or upon a window or upon the floor, the seeds within it are not like land, for so it is explained from the words of the Rambam, chapter 1 of Terumot, law 23, see there [who ruled like Rabbi Yehuda in Challah chapter 2, and see Tosafot Gittin 7b, beginning with "Amar Rabbi Yehuda"]. And if the leaves lean outside the vessel over the airspace of the ground, even if the vessel is not perforated, the seeds are considered like land [Mishneh LaMelekh chapter 2 of Bekhorot, and so it appears from Rashi, Chullin 128a; however, according to the Rambam, chapter 2 of Tumat Okhalin, law 9, there is no proof, and examine it closely]. And all this is regarding seeds, but trees planted in vessels, even if it is not perforated, it is considered like one that is perforated, for so it is explained from the Rambam, chapter 10 of Maaser Sheni, law 8; but from the Rosh in the laws of Orlah and from the Tur, Yoreh Deah, end of siman 294, it appears that even for a tree, perforation is required.

Our teacher, the Rema, wrote that some say specifically with wood we require it to be perforated, but that which is of earthenware, even if not perforated, is considered as if perforated because moisture seeps and passes through the earthenware [Rashi, Gittin 7b]. And some say the opposite, that earthenware requires perforation, but that which is of wood, even if not perforated, is considered as if perforated because the wood draws much moisture [Tosafot ibid.]. And know that the Rambam and the Tur did not distinguish at all between wood and earthenware, and even though in the Gemara, Menachot 84b, it is explained that there is a distinction between them, they hold that it is not according to the halacha [for this is according to Resh Lakish and not according to Rabbi Yochanan, see there; and the difficulty of the Tosafot regarding Rashi is resolved, and the Tur in Yoreh Deah there refers to a tree according to the Yerushalmi and not to seeds, and this requires great study regarding the Rema, and delve into this].

Land of any size acquires many movable objects upon it, and it is not necessary to specify the land through which he transfers them; rather, when he transfers to him via money or a deed, he writes to him "land" without specification. However, if he performs a chazakah on the land, he naturally knows which land it is. And specifically when it is not known that he possesses no land, then this suffices even though he does not specify the land; but when it is known that he has none, he must specify the land through which he transfers them. The buyer may transfer to him land of any size of his own so that he may transfer the movable objects to him agavan, as I wrote in siman 113 regarding a lien. And if he wrote "not as a mere formulaic contract," and certainly if he wrote explicitly that he admitted he has land, or if he wrote "four amot in my courtyard," which is like an admission, it is effective even if they are familiar with him and do not know of any land belonging to him, for a person is believed concerning himself [Tosafot Bava Batra 44b and the Beit Yosef in the name of the Rashba]. One may also transfer agav places in a beit knesset, even if the place is only borrowed or rented to him; and not only that, but even if the places belong to the public and each one merely sits in a place designated for him, it is as if the place is borrowed to him, and he transfers movable objects through it, for borrowing and renting are like a sale for its duration regarding this matter. And certainly if the land is his and is rented to another, he transfers through it since the essence belongs to him [it appears to me].

The acquisition of movables agav land is when one transfers the land and the movables to one person. However, when he transferred the land to one person and the movables to another, and said to him, "Acquire the movables belonging to you agav the land that I am granting to so-and-so," and to the second he said, "Acquire the land for yourself and agav it these movables shall be acquired by so-and-so," the owner of the movables has not acquired the movables even when they are piled within it, for this is a query in the Gemara and was not resolved. And it appears to me that if the owner of the movables betrothed a woman with the movables, she requires a get due to doubt, since it is a legal doubt. And likewise, if this transferor betrothed a woman with these movables and another came and betrothed her as well, she requires a get from both of them. And it is not necessary to state according to the Rambam, of blessed memory, who wrote that if the buyer seized them after the seller retracted, they are not removed from his possession because he is the possessor—for his system is that in a legal doubt, seizure is effective—but even according to those who disagree with him, who hold that only in other doubts where the claimant can say "kim li" is seizure effective, and not in a doubt of the Gemara, since it remained in doubt to the sages of the Shas there is no person in the world who can say "kim li," nevertheless, regarding the matter of kiddushin, she requires a get due to doubt.

But an apotropos and orphans are like one person; therefore, if he transferred the land to the apotropos and the movables to the orphans, or vice versa, they have acquired them, for an apotropos is the hand of the orphans. And so too with an adult who has an apotropos in his house, they are considered as one. And so too an apotropos who sold his own land and the movables of orphans to one person, and so too an agent who sold his own land and the movables of the sender to one person, or vice versa, for they are considered as one [Netivot HaMishpat]. And all the more so regarding charity collectors with the poor, for they are considered as one. And there are those who say that only regarding charity collectors and the poor is the law so, because they are obligated to sustain them, but not regarding an apotropos and orphans. Our teacher, the Rema, stated the first opinion without qualification, and such is the primary ruling [for in Kiddushin 27 it says regarding charity collectors because he is the hand of the poor, and all the more so that an agent is the hand of the sender and an apotropos is the hand of the orphans, for even a beit din is considered like the hand of the orphans, as is proven in Bava Kamma 36b which compares it to this, and all the more so an apotropos].

One who transfers a beast and vessels that are upon it as one, even though he pulled the beast and acquired it, he has not acquired the vessels that are upon it through the pulling of the beast, because there is a doubt in the matter. For perhaps because their pullings are not equal—since the essence of pulling a beast is through its walking, as was written in siman 197, and the pulling of a vessel is through dragging—and even though the name "pulling" applies to both of them, nevertheless, perhaps because they are not equal, he does not acquire the vessels through the pulling of the beast. And also by the reasoning of a courtyard he has not acquired, such that the beast would be considered like his courtyard, for a moving courtyard does not acquire. Therefore, if the beast is bound and he pulled it and acquired it, he has also acquired the vessels upon it, and not by the reasoning of pulling, but rather from the acquisition of a courtyard, for when it is bound it is like his courtyard. And regarding a beast, we do not require that it be sleeping as we do with a slave, for behold, it is guarded with his knowledge even when it is awake. And regarding one that is not bound, some say that seizing does not avail since it is a legal doubt, as was written in section 9 according to those who disagree with the Rambam. And some say that in this case seizing avails even according to those who disagree with him, since he seized with permission, for behold, the seller commanded him to perform a pulling, and by his command he seized; this is not the case there, where the owner of the movable property did not perform an action at all, and when he seized, the seller had already retracted [Shach].

But if the seller said to him, "Pull this animal and acquire the vessels that are upon it," and he did not transfer the animal to him, even though he pulled it and it was bound, he did not acquire the vessels that are upon it. For by reason of pulling, he did not acquire, as they are not equal, as I have written; and by reason of courtyard, he also did not acquire, for it is the courtyard of the seller. And even though when it is bound its pulling is equal to the pulling of vessels, for he must drag it, and they should be acquired through its pulling, nevertheless, since with ordinary animals the pulling is not equal to the pulling of vessels, there is a doubt that perhaps the vessels are not acquired via the pulling of the animal in any case [Sma]. Therefore, if he said to him, "Pull this basket and through its pulling acquire what is inside it," he acquired what is inside it even though he did not transfer the basket to him, since their pulling is equal. And it has already been explained in siman 200, section 14, that pulling within the vessels of the seller is effective [and see Tosafot Bava Metzia 9b, s.v. "Pull"].

Since it has been explained that the reason why pulling the animal does not effect acquisition of the vessels is due to a legal doubt, therefore there is one who says that specifically regarding a purchase or a gift he has not acquired them, for we establish it in the possession of the first owner. However, regarding ownerless property or a find, if he says "I am pulling this animal to acquire it and the vessels upon it," he has acquired them even if it is not bound, for he acquires them by virtue of pulling. And even though it is a legal doubt, nevertheless, once he has become the possessor, we do not remove it from his hand. And the same law applies even if he said only to acquire the vessels and not the animal, he has also acquired them [Bach]. And there are those who disagree on this, for specifically when he acquired both is he considered a possessor of the vessels, because they are in his domain—that is, upon his animal which is like his courtyard. And even though it is a moving courtyard, nevertheless it is at least his domain and he is called a possessor. But when he did not intend to acquire the animal, there is no seizure here, for by what means is he a possessor of the vessels? Behold, they are not in his domain [Ketzot HaChoshen], for perforce the vessels are still upon the animal and he did not pull them into his domain; for if he pulled them into his domain, he would have acquired them regardless by virtue of pulling them themselves or by the acquisition of his courtyard.