Siman 243

One who grants a gift to his fellow through another, once this other person has taken possession of the gift on behalf of the recipient, or if the gift was via a deed and the giver delivered the deed into the hand of the other and he acquired it for the sake of the recipient, the recipient has acquired it and the giver cannot retract, for one may acquire a benefit for a person in his absence. The recipient has the upper hand: if he desires it, he accepts it, and if he does not desire it, it returns to the giver. This is specifically when he protested immediately; however, if he remained silent immediately upon hearing and after a time said that he does not desire the gift, there is another law regarding this, and it will be explained in siman 245 with the help of Heaven. The one who acquires it becomes like the agent of the recipient, and the recipient can extract the gift from the hand of the giver if the acquisition of the one who acquired it was not through meshikhah but through another acquisition and the gift is still in the domain of the giver, even though the recipient was not present at the time of the acquisition. The giver cannot say to him, "You are not my litigant," for the recipient says to him that the one who acquired it became like my agent. Similarly, if one vowed to a tzedakah collector to give such and such for the needs of the poor, and the collector's intention was for the needs of a specific poor person, this poor person can extract it from the one who vowed even though he did not know at all at the time he vowed to the collector [Taz], for the collector becomes like his agent.

In what case are these words said? When the giver said, "Acquire this gift for so-and-so" or "on behalf of so-and-so." But if he said to him, "Bring this maneh to so-and-so," he may retract as long as it has not reached the hand of the recipient, for regarding a gift, "bring" is not considered like "acquire." This is not similar to a loan or a deposit, where we establish in siman 125 that it is considered like "acquire" because he is obligated to give them; but regarding a gift, when he said "bring," his intention was that the recipient should acquire specifically when it reaches his hand. Similarly, if he said, "Give this gift to so-and-so," it is not like "acquire." However, in the opinion of the Rambam, "give" is like "acquire" even regarding a gift, as is written there. And even if it were not like "acquire," nevertheless, if it is a small gift, there is an issue of "lacking in faithfulness" if he does not fulfill it, as is written in siman 204. And if the recipient is a poor person, he has acquired it even in the case of a large gift by the law of a vow, as is written in Yoreh Deah in siman 258. Furthermore, even if he himself did not give it but merely agreed to the gift—as in the incident involving a woman who fell ill and gave a gift during her illness, and her husband consented without her entreaty, and afterward he wished to retract, and the sages ruled that he cannot retract since the gift was to a poor person. But if she gave a gift to a wealthy person, he can retract afterward because he can say that his consent at the time of the act was because he did not want to cause her distress in her illness. But regarding a poor person, we follow the stringency that perhaps he truly agreed. And regarding a gift to a poor person when she had not yet given it in practice but only promised to give it, and the husband remained silent, he can also say that his silence was because he did not feel the need to protest against her since she had not yet given it [as is implied from the Rema]. Furthermore, it appears to me that if she gave a gift to a wealthy person while she was healthy and the husband remained silent, he cannot afterward retract, for if he did not agree, why did he not protest against her? For since she is healthy, it is not relevant to say that he did not want to cause her distress. However, in Even HaEzer siman 90, it does not imply so.

In the case of a neder or shevuah where one vowed or swore to give a gift to a certain person, and afterwards said to another, "Take" or "Give this gift to that person," it is considered as "acquire for him." For since he cannot retract because of the neder or the shevuah, its law is like a loan or a deposit; and a handshake has the law of a shevuah [Mahaneh Ephraim].

Even if he said to him, "Acquire for so-and-so," he does not acquire unless the gift is in the domain of the acquirer. But if it is not in his domain, mere words are not a kinyan unless there was a kinyan sudar or chazakah in land. However, when he said to him, "Acquire on behalf of so-and-so," even if the object is not currently in the domain of the acquirer, nevertheless, when it comes into his domain, he has acquired it on his behalf if the giver does not retract before it comes into his domain. For since he commanded him to acquire on his behalf, he is his agent to acquire for so-and-so when it comes into his domain, and then his domain acquires it for that so-and-so. And there is one who says that, nevertheless, it must be in the domain of the giver at the time he says to him, "Acquire for so-and-so," for otherwise it is like a dabar she-lo ba la-olam. This is not clear, for even regarding a dabar she-lo ba la-olam, he can say to him, "When it comes into the world, acquire it for so-and-so," unless it is due to the reason that anything one cannot do himself, he cannot appoint an agent for, and it depends on the opinions we explained in siman 182, section 4. And even according to this, when it was not in the domain of the giver and the acquirer accepted with a kinyan that he should acquire for so-and-so when it comes into the domain of the acquirer, if he preceded and seized it before the giver retracted, he has acquired, as I wrote in siman 209 regarding the matter of a dabar she-lo ba la-olam, that seizing is effective in such a case [Taz]. And some say that this which is effective—that acquisition works when the gift is in the domain of the acquirer—is specifically when at the time of the acquisition it entered the domain of the acquirer. But if it was previously in his domain, it is not effective when he says to him, "Acquire for so-and-so," for his acquisition is not recognizable now. But when it is in the hand of the acquirer, it is effective even if it was previously in his hand, for when it is literally in his hand, his acquisition is recognizable even in such a case, and it was explained in siman 125. Therefore, according to this opinion, if it is not literally in his hand and it was in his domain previously, he should acquire it for him now with a kinyan sudar or take it into his hands.

When one says to another, "Acquire for Reuven," and he acquired on his behalf, if it became known that at the time of the acquisition Reuven was not alive, the gift returns to the giver, and the heirs of Reuven do not acquire it, for he gave to him and not to his heirs. And regarding "bring to so-and-so" and he died, it has been explained in siman 125; see there.

If one said to two people, "Acquire this field for so-and-so," and "Write a deed for him," and they performed a chazakah on the field to acquire it for so-and-so, even though the giver cannot retract the gift itself, nevertheless, regarding the deed he can retract. And even if they wrote it, nevertheless, as long as it has not come into the hand of the recipient, he can retract and say, "I am not comfortable with the deed, lest people say that I am burdened with many deeds and my properties will depreciate." And even if he transferred the field through a kinyan sudar, and an unspecified kinyan is intended for writing—this means that the witnesses may write even without asking his mouth as long as he has not protested—but this is certain, that he can protest, for with what did he acquire the deed such that it would not be within his power to protest it? And even if they performed a kinyan from him regarding the writing of the deed, it is a kinyan devarim, for writing has no substance upon which the kinyan could take effect [Sma].

In what case is it said that he cannot retract the gift because he did not make the gift dependent on the deed? However, if he said to them, "Acquire this field for so-and-so on the condition that you write the deed for him," even if they performed a chazakah on the field and he also accepted a kinyan sudar, he can retract the deed and the gift is also canceled. And even if they wrote the deed, as long as they have not delivered it into the hand of the recipient, if he protested against them delivering it to him, the gift is also canceled. And this that he said, "on the condition that you write for him," the intention was to write and deliver, for writing without delivery into his hand is nothing. And since he retracted the delivery into his hand, and he made the gift dependent on this, the gift is canceled automatically. And so too with any other condition, such as "on the condition that you give him two hundred zuz" and the like; as long as the condition has not yet been fulfilled and he retracts, the gift is canceled. And one should not say that since the condition is not dependent on the hand of the giver but rather on the hand of the witnesses, they should fulfill the condition against the will of the giver. Granted, regarding "on the condition that you write the deed for him," for the writing of a deed requires agency, and since he cancels the agency for the deed, the gift is automatically canceled as well. But a condition of "that you give him two hundred zuz," let them give the recipient two hundred zuz against the will of the giver and the gift shall be upheld? For it can be said that certainly if the condition was for the benefit of the giver, such as "on the condition of giving the giver two hundred zuz," they certainly could do so. But a condition that is for the benefit of the recipient is not a condition regarding the recipient such that he would have the power to do it against his will when the giver stipulated it, for a condition that one stipulates for the benefit of his fellow is merely "pitumei mili," as I wrote in siman 207. And one should not say, on the contrary, since it is "pitumei mili" the condition is void and the act stands, for it is not so; for the benefit of the giver it is not "pitumei mili," and we say that this is what he meant: that the gift should not be finalized until they give him the two hundred zuz and that he does not protest against them [the Rosh, chapter 5 of Bava Batra, siman 5]. And even though a condition at the beginning of the kinyan is not "pitumei mili" even if one stipulated for the benefit of his fellow, as I wrote there in section 10, that is in a sale, where we say that even though the seller stipulated for the benefit of the buyer, nevertheless the buyer only entered the transaction on this condition. But in a gift, when the giver stipulates for the benefit of the recipient, even at the beginning of the matter it is "pitumei mili," since the matter depends only on the giver [it appears to me]. And so too the recipient cannot say "behold I am as if I have received it," as in kiddushin in Even HaEzer siman 38, for behold, the giver stipulated thus so that he would be able to retract [the Ran, first chapter of Kiddushin]. And it is as if he said, "on the condition that I do not protest" [Nimukei Yosef, Bava Batra, ibid.]. And if he said in this language, "on the condition that I consent to the writing of the deed," there is no limit to the matter, for whenever he consents, the gift is upheld retroactively, for anyone who says "on the condition" is like one who says "from now." Therefore, they leave the produce in the hand of a third party, and when he consents, they deliver the produce to the recipient [ibid.]. And even if he protested against the writing, the gift is not canceled, for if he consents afterward, it will take effect retroactively. But when he said "on the condition that you write," immediately when he protested, the gift was canceled, for this is like saying "on the condition that I do not protest" [ibid.], and similarly with other types of conditions.

And there was an incident involving a man and a woman who performed a kinyan that they would marry one another and established a fine between them against whoever would retract, in the manner of shidduchin, and they said "on the condition that the documents be written," and afterward one of them retracted before the writing of the documents and protested their writing. The Rosh, of blessed memory, ruled that the kinyan was void, since they said "on the condition that the documents be written," and since a document requires agency and one of them canceled the agency, and they made the kinyan dependent on the documents, the kinyan is automatically void and the one who retracts is exempt from the fine. And even if the documents were written, as long as they were not delivered to the parties, they can retract, as has been explained. And this is specifically where they performed a kinyan on the fine as well and the kinyan took effect, as is written in siman 207, section 25; but if the kinyan was only on the marriage itself, even without this the kinyan does not take effect, for it is a kinyan devarim [Sma]. And there is one who disagrees regarding this, that marriage is not a kinyan devarim [Taz], and such is the primary view, for the obligation of marriage is a lien of the person, in that he obligates himself for her sustenance and her clothing, and she liens her person for labor, and it is no less than a kinyan on the hiring of the person. And so it is implied from our teacher, the Rema, in section 7, see there.

There is one of our teachers who holds that specifically regarding a deed of gift one may protest against the writing of the deed, but regarding a sale one cannot protest against the writing [Rabbeinu Tam there in Tosafot]. Many disagree with this, for even in a sale, when one sold his field and said to two people, "Acquire this field for him and write him a deed," and they took possession of the field or there was an acquisition of money, he may protest against the writing of the deed of sale. However, the buyer may also retract and say, "I only purchased it on the condition that you write the deed for me." The opinion of the Rambam in chapter 6 of Sale also appears so; even if they performed a kinyan from his hand regarding the deed, it is a kinyan devarim and he may retract. Even though in a sale there is a lien on properties, this applies only when the acquisition was through the deed, for through this deed his properties became liened; but if the acquisition was through something else, his properties have already become liened through the acquisition, and the kinyan regarding the writing of the deed remains a mere kinyan devarim. Therefore, if there was no other kinyan and they performed a kinyan from his hand regarding the writing of the deed for the sale of the field, he cannot retract [as is evident in the Tur and in the Sma, subsection 19].

And even though the seller may retract from the writing of the deed, nevertheless, he is liable for its guarantee if they seize it from the buyer on his account. And specifically from unencumbered properties, but from encumbered properties he does not seize, since he protested against the deed. And even though in siman 39 it was explained that with a kinyan alone one collects from encumbered properties, and in a sale even with witnesses alone one collects from encumbered properties, this applies when he does not protest against the deed, for then we say an unspecified kinyan is intended for writing and the witnesses of the kinyan publicize the matter; but when he protests to them against writing so that the matter is not publicized, consequently the witnesses are also careful not to publicize the matter and the purchasers would not know to be careful, and therefore he does not seize from them. But in a gift, encumbrance is not relevant at all even from unencumbered properties, for there is no guarantee in a gift; however, if he took a guarantee upon himself, its law is like a sale [Sma]. And there are those who say that in a sale he collects from encumbered properties even when he protested against the deed [the Gra].

There is one who says that this matter of retracting regarding the deed is specifically when he says to others, "Acquire this for so-and-so," but if he said to the buyer or to the recipient himself, "Acquire it and I will write a deed for you," he cannot retract from writing the deed. For whenever he grants acquisition to the litigant himself, the grantor knows that the intention of the acquirer himself is for the deed, and we say that presumably the intention of the grantor was also thus. However, when he grants acquisition through another, the other does not pay so much attention that his mind should be set upon the deed, and therefore the grantor also does not specifically intend it [Sma]:

Even if he said, "Write and acquire it for him through the deed," he may retract regarding the deed. We do not say that since he commanded them to acquire the deed, as soon as they wrote it, they acquired it on behalf of the recipient. And how does the deed differ from the field itself? For one could say that the field existed in the world when he commanded them to acquire it on his behalf, but the deed did not yet exist in the world at that time, and a person cannot transfer something that has not yet come into the world [Tur]. And some say that since it was written, they acquired it for him and he cannot retract, just as a woman has the power to appoint an agent for receipt of a get, and once the agent receives the get she is divorced and the husband cannot retract, even though at the time she appointed him an agent the get had not yet been written [the Gra]. However, if he did not say to them, "Acquire it for him," he may retract even though the deed was written, as long as it has not come into the hand of the recipient, as has been explained.

A deed in which it is written that one gave land to a certain person through a kinyan, even though this deed did not reach the hand of the recipient until after the death of the giver, he has acquired it. We do not say "there is no deed after death," for that applies if a kinyan was not written in the deed and the kinyan is through the deed; then certainly there is no deed after death. However, when a kinyan is written in it, the recipient merited it from the time of the kinyan, and the deed is merely for proof, for one may acquire for a person in his absence. And even if the deed was returned to the hand of the giver, the gift is not canceled [Tur], as I wrote in siman 245. Therefore, one who died and a deed of gift was found deposited with him, stating that Reuven gave a certain land to Shimon, and Reuven died: if a kinyan is not written in the deed, it shall return to the heirs of the giver. Even though there is a doubt that perhaps the deed already reached the hand of the recipient and the recipient deposited it with him, nevertheless, since there is no proof for this, we establish the gift in the possession of the giver. Even if the recipient claims so, he is not believed without proof. But when there is a kinyan in it, we give it to the recipient. If the heirs claim that there was some condition and the condition was not fulfilled, they are not believed without proof, unless there is evidence that it is so, such as if this deed is tied or wrapped with other deeds designated for the giver; for then, even if they do not claim, the beit din claims on their behalf, for we claim on behalf of heirs, and see what I wrote in siman 65 [see Sma and the Gra]. Similarly, if the giver is alive and there is a kinyan in the deed, and the giver claims there was a condition and it was not fulfilled: if he has a migo, such as if the deed was not previously established and was in his hand, he is believed with a migo. But if the deed was previously established in beit din or with witnesses, and we do not say a migo retroactively, he is not believed [Taz]. Likewise, when it is not in his hand, he is not believed.

And some say that this which has been explained, that regarding a shtar that does not contain a kinyan they shall return it to the heirs of the giver, this is specifically when it is known that it came from the hand of the giver, such as when it was found tied with other shtarot of the giver. But when it is not known from where it came, they return it neither to this one nor to that one, as with a found shtar in siman 65. And regarding a shtar that contains a kinyan, then when it is known that it came from the giver, he shall return it neither to this one nor to that one, for we fear perhaps there was some condition and it was not fulfilled, unless it is known through witnesses that he transferred it without qualification. And if it is not known that it came from the giver, they return it to the recipient [Shach].

A person does not acquire a gift for his fellow unless the one acquiring is an adult and of sound mind, and this applies both to a man and a woman, even a married woman, or a male or female slave. However, a gentile does not acquire for another because he is not subject to the laws of agency, and acquisition is based on the principle of agency, for the one acquiring is considered like the agent of the one on whose behalf he acquired. Likewise, an Israelite does not acquire for him, just as he cannot become an agent for him, as was written in siman 182. And even according to the one who does not hold that acquisition is based on the principle of agency, as was written in siman 235, section 8, nevertheless, the one acquiring and the one for whom they acquire must be fit for agency, for without this, he has no power to acquire. And that which we acquire for a minor even one day old, this is a rabbinic enactment so that it should be possible to acquire on his behalf, and they enacted this for a minor because he will eventually come to the status of agency when he grows up [Bava Metzia 72a]. And some say that a gentile has agency for another gentile [Shach], and we have already explained in siman 188 that there are those who disagree with this and that it is explicitly stated so in the Yerushalmi; see there. And that which we said that a married woman has the power of acquisition, this is specifically from others, but not from her husband, for her hand is as his hand and it has not left his domain at all, unless he gave to her and to another together and placed the gift in her hand, for then, since she acquires for herself, she also acquires for others. Likewise, a male or female slave does not have a "hand" to acquire on behalf of another from their master, because their hand is as their master's hand and it has not left his domain at all.

Our sages, of blessed memory, said [Gittin 65a] that a minor who has reached a measure of understanding—such that when they give him a pebble he throws it, and when they give him a nut, which is also like a pebble on the outside, he takes it and understands that there is food inside—acquires for himself and has the capacity to acquire for himself. However, he does not have the capacity to acquire for others until he grows up, and not before; even if he is of such understanding that when they give him an object he returns it after a while, nevertheless he does not acquire for others [and we do not rule like Rabbi Eliezer ibid. 64b]. And when he is less than the measure of "a pebble and he throws it, a nut and he takes it," he has no capacity at all even for himself, and one who gives into his hand is like one who casts into a refuse heap. And that which was explained in siman 235, that the purchase of toddlers is a valid purchase and their sale is a valid sale regarding movables—implying that they also have the capacity to acquire for others—this is by rabbinic enactment for the sake of his livelihood, as is written there. And this measure of "a nut and he takes it" is prior to the stage of toddlers [ibid.]. And since a minor who has not reached this measure has no acquisition for himself at all, therefore the sages enacted that another can acquire on his behalf [Tosafot Bava Batra 156b]. And that which says he does not acquire for others refers to matters of Torah law, but in rabbinic matters, such as regarding an eruv, one may acquire through him, as is written in Orach Chaim siman 366, and likewise regarding rabbinic second tithe [ibid.].

Many of our teachers agreed that what the Sages, of blessed memory, said—that at the measure of "an egoz and he takes it" he acquires for himself—is not from a rabbinic enactment, but rather from the Torah he has a "hand" to acquire when he reaches this measure. However, this is specifically when there is another mind transferring ownership to him, and therefore through the other person transferring to him, he has a "hand" to acquire for himself from the Torah. But without another mind, such as when he finds a metziah, he has no "hand" to acquire. Therefore, it was explained in siman 270 that the metziah of a cheresh, shoteh, and katan does not involve gezel except because of darkei shalom. And one of our teachers disagrees with this and holds that even where there is no other mind, he acquires from the Torah, and that which was said regarding a metziah that it is only darkei shalom refers to a katan who has not reached this measure, and he brings proof from the Yerushalmi [Shach]. And there are those who refuted his words and wrote that perforce the Yerushalmi disagrees with our Shas, and we follow our Shas. However, the truth is that in the Yerushalmi itself there is a dispute in this matter between the Sages of Bavel and the Sages of Eretz Yisrael, for the Sages of Bavel hold that a katan has a "hand" to acquire from the Torah, and regarding acquiring for others they disagreed as in our Shas. But the Sages of Eretz Yisrael hold that a katan has no acquisition at all until he brings two hairs, as it says there: "his theft is never complete gezel until he brings two hairs" [Chapter 4 of Ma'aser Sheni, halacha 3]. Furthermore, it says there that according to everyone, a katan cannot give a gift from the Torah, as it is written: "When a man shall give." Furthermore, it is proven there that according to the Sages of Bavel, that a katan has a "hand" to acquire from the Torah is when he has reached the time that they give him an object and he returns it after an hour; but at the time of "an egoz and he takes it," it says there that it is only because of darkei shalom, and prior to this it is like one who casts into a refuse heap. And in this it disagrees with our Shas. And although it seemingly appears from the Yerushalmi that there is no distinction between another mind transferring and a metziah, nevertheless, this Yerushalmi was also brought in Gittin chapter 5 regarding a metziah, and if you examine closely, it is proven on the contrary like the words of our teachers that there is a distinction between another mind transferring and a metziah [for in Gittin there, there is no explanation for what it questions the Sages of Eretz Yisrael, and on the contrary it is simply settled, but this is the explanation: here it is settled according to everyone that regarding a metziah even the Sages of Bavel admit, but that of Ma'aser Sheni is difficult like the sugya of Ma'aser Sheni, and it employed a concise language in the manner of the Yerushalmi, and delve into this]. Therefore, for the halacha, the main point is that there is a distinction between another mind transferring and no other mind, as our teachers the authors of the Shulchan Aruch wrote, and it is somewhat implied as such also from the Rambam, chapter 4 of Zekhiya, law 7 [Maggid Mishneh]. And there is one who says that in less than the measure of "an egoz and he takes it," there is no gezel at all in his metziah even because of darkei shalom [Netivot HaMishpat]. But it does not appear so, for the Shas and the poskim wrote "katan" without qualification, implying that we are dealing with any katan. And the Yerushalmi that said he is like one who casts into a refuse heap only said this regarding the one who gives to him, but regarding a metziah the Sages, of blessed memory, said the reason is that at the time he finds it, he runs with it to his father, and this applies to any katan. And perhaps in less than this measure, he does not have the mind to run with it to his father, and it requires further study for the halacha.

One may acquire on behalf of a minor, even a one-day-old, and this is an enactment of the sages so that one who wishes to acquire for him—since he himself lacks the legal capacity—another may acquire on his behalf. Similarly, one may acquire on behalf of an adult; even though he has legal capacity himself, nevertheless another may also acquire for him. One may acquire whether in his presence or not in his presence, for it is a great principle: one may acquire for a person not in his presence. We do not say perhaps this man for whom they are acquiring is one who hates gifts and this is not a benefit for him, for we follow the majority of people. Furthermore, in every matter of benefit and liability, we follow the majority of benefit in the matter, even if there is also a minority of liability in this case, and similarly the reverse [as is evident from Tosafot Gittin 13a, s.v. "Avda"]. A shoteh does not acquire for himself, and certainly not for others, even when another's mind conveys it to him, for he has no mind at all; he is like a minor who has not yet reached the stage of "receiving a nut and taking it." However, one who conveys to a shoteh through a person of sound mind has acquired, and it is no worse than a one-day-old infant. But if they acquired for him through a minor or a cheresh, he does not acquire, for they cannot acquire for others. A cheresh acquires for himself but not for others, for he is like a minor who has reached the stage of "receiving a nut and taking it"; therefore, when another's mind conveys to a cheresh, he acquires by Torah law, and in the case of a find, he acquires for the sake of the ways of peace. Similarly, a shoteh acquires a find for this reason, as I wrote in siman 270 [and from the cheresh there is proof for what I wrote in section 17, and study it well]. There is one who says that one cannot acquire for a shoteh unless he is "sometimes healthy and sometimes a shoteh," for then one may acquire for him even during his period of insanity, and he is like a minor who will eventually come to have a mind; but one who is always a shoteh, one cannot acquire for him [Ktzot HaChoshen]. This is not implied by all the poskim; on the contrary, since the Tur wrote that one may acquire for a shoteh, even a one-day-old acquires—and behold, when he is a one-day-old it is not known that he will be "sometimes healthy" [and it is forced to say that it refers only to a minor; also from the proofs of the Maggid Mishneh in chapter 4 of Hilchot Zechiyah from Yevamot 113, this is explicitly implied, and study it well]. A minor who conveys to an adult through an adult does not acquire; for even though the adult becomes like the agent of the adult, nevertheless he must also be the agent of the one conveying, for it is impossible to acquire for one's fellow unless he becomes the agent of the owner of the money, and a minor cannot appoint an agent [Machaneh Ephraim, and see Tosafot Bava Metzia 71b, s.v. "Bishlama"]. Also, a non-Jew who conveyed to an Israelite through an Israelite is not effective [Netivot HaMishpat]. Know that in the Yerushalmi Peah chapter 4, it is implied that a person cannot acquire for his fellow unless the acquirer could also acquire it for himself; according to this, an Israelite cannot acquire priestly gifts on behalf of a kohen. However, in our Talmud it is explicitly explained to the contrary [ibid.]. Indeed, even the conclusion of the Yerushalmi is not so, see there. From what has been explained, that when another's mind conveys to a minor he acquires by Torah law, we learned that one may give to a minor kohen the redemption of the firstborn and similarly other priestly gifts [ibid.]. There are those who learned from what has been explained—that one may acquire for a person not in his presence—that a maidservant is permitted to separate challah from the dough of the mistress of the house when she is not at home at that time, or if she is there but is not awake. Our teacher, the Rema, wrote thus in Yoreh Deah siman 328. There are those who disagree with this, for perhaps her will is to perform the mitzvah herself and she would separate after baking; even though initially it is a mitzvah to separate from the dough, nevertheless it is better for her to separate herself from baked bread than for her agent to separate from her dough, for "a mitzvah is greater when performed by him than by his agent" [Ktzot HaChoshen]. This is also implied by our teachers, the authors of the Tosafot [Nazir 12b]. It is only called a "benefit" when he acquires some object through this, but not when the mitzvah is performed by others. However, if the mistress of the house will delay and it is possible that the household members will eat without challah, it is certainly a benefit for her and they separate without her. Even though we hold that regarding challah outside the Land of Israel one may continue eating and separate afterward, nevertheless one should not rely on this initially; perhaps this was also the intention of our teacher, the Rema, in such a case. In Yoreh Deah siman 305 it was explained that there are those who learned from this that one may acquire for a minor, such that for a firstborn minor whose father died, the beit din may redeem him, for it is a benefit for him. There are those who disagree with this. However, with the minor's own money, it appears that it is not effective; it is well when they acquire money for him, they acquire for him, but with his own money this is not a benefit, for he himself will fulfill the mitzvah when he grows up [Ktzot HaChoshen]. This appears to be the primary view.

There is one who says that a katan has no power of acquisition except regarding movable property that has reached his hand, but the sages did not institute for a katan a kinyan sudar, or a kinyan agav karka, or a kinyan shetar. And similarly regarding pe'otot in siman 235, whose purchase is a valid purchase, it is only through this kinyan, for in another kinyan a katan does not have the understanding to comprehend. Therefore, one who obligates himself to a katan via a shetar, or via kinyan sudar, or agav karka, since that object is not in the hand of the katan, he does not acquire it unless he granted it to him through another [Netivot HaMishpat].

A person's courtyard acquires for him like his hand, and it acquires for him even without his knowledge and even though he is not standing there, for once the gift has reached his courtyard, it is as if he merited it with his hand. In what case are these matters stated? Regarding a guarded courtyard. But regarding an unguarded courtyard, such as his field or his ruin, or a courtyard that is not enclosed, it does not acquire until he is standing beside it and says, "My domain has acquired for me." And see what I wrote in siman 268. And there are those who say that regarding a sale or a gift, since there is another mind transferring it, it does not need to be guarded according to the knowledge of the recipient, and it is sufficient that it be guarded according to the knowledge of the seller or the giver, as I wrote in siman 200; see there.

And likewise the sages enacted that the four amot of a person where he stands acquire for him like his courtyard. And they only enacted this in a side alley or at the sides of a public domain or in a courtyard that has no owners, but in a public domain or in the field of his fellow, he does not acquire until the gift reaches his hand. And the reason is because in a public domain, where many are present, the four amot of this one enter within those of that one, and it is impossible to clarify to whom they belong; and certainly in the domain of his fellow, it is not relevant to enact that they should be like his own. And some say that four amot only acquires regarding a found object, which they enacted so that it should not lead to dispute when one stands next to it and another comes and takes it; but regarding a gift or a purchase, where this reason is not relevant, they did not enact this acquisition. And likewise regarding theft, the thief does not acquire by way of four amot [Shach]. And for the law, the primary view is like the first opinion, as I have written there in section 8.

Our sages, of blessed memory, said [Bava Metzia 12a] that a person's courtyard acquires for them either based on the principle of "hand" or based on the principle of "agency," for a courtyard is no less than his agent. Furthermore, our sages, of blessed memory, derived that the courtyard of a woman is learned from her hand, for since the Torah included a courtyard regarding a get—that one who places a get in her courtyard is as if he placed it in her hand—we learn from this that her courtyard was included because of her hand. However, the courtyard of a man is based on the principle of agency, for there is no verse regarding him that it should be like his hand. Therefore, just as a minor girl's hand acquires for her, so too her courtyard and her four amot acquire for her. But a minor boy, just as he cannot appoint an agent, so too the courtyard and four amot do not acquire for him until the gift reaches his hand or another person acquires it on his behalf. And some say that since we derive the courtyard of a minor girl from a get, a minor girl only has a courtyard when she has no father or after she has already been married, for then she has a "hand" to receive her get; but when she has a father and prior to marriage, when she does not have a "hand" to receive the get and only her father receives her get, she also does not have the law of a courtyard. And there are those who disagree on this, for many of the poskim hold that even regarding a get she has a "hand," as is written in Even HaEzer siman 141. Furthermore, even according to those who hold she does not receive her get, it is not because she lacks a "hand," but because regarding kiddushin the Torah granted the rights to the father, as it is written, "I gave my daughter to this man," and leaving is equated to becoming; but this is not relevant to monetary laws [Shach]. And some say that when she is supported at her father's table, at which time the father acquires her gifts as is written in siman 270, then she does not have a courtyard, for in relation to her father her courtyard is not considered like her hand; but when she is not supported, she has a courtyard [Netivot HaMishpat]. And some wrote that a minor girl has a deed and kinyan sudar, and in siman 235 section 7 we explained this, see there.

If one gave flying birds as a gift to another and they flew through the recipient's domain, if he stood close enough that he could catch them, his domain has acquired them for him even though he did not catch them [Sma in siman 268]. And if he was not able to catch them, his domain did not acquire them for him. And if they are unable to fly but rather walk through his domain, even though regarding a found object we require that he be able to reach them if he were running, as was written there, nevertheless, in a gift or a sale, since there is the mind of another transferring ownership, his acquisition is stronger and his domain acquires them for him even though he cannot reach them, since they are walking upon his ground [Bava Metzia 12a]. For a thing that rolls within his domain is superior to the airspace, as will be explained. And even though it will eventually exit his domain by rolling, nevertheless, regarding a gift and a sale, it is as if it were resting in his domain. And in siman 268 more will be explained regarding this with the help of Heaven; see there.

But airspace that is not destined to come to rest is a legal doubt regarding a gift—whether it is considered as if it has come to rest or not. Therefore, one who gives a purse to his fellow as a gift and threw it into the house of the recipient through this opening, and it exited through the opening on the other side, and in the meantime the giver retracted, it is a doubt whether he acquired it or not. And it is known that in every doubt we establish the matter in the status of the original owner. However, in a case of hefker such as this, where he declared it hefker and threw it through the house of Reuven and it exited from his house and Shimon seized it, we remove it from his hand and give it to Reuven; for since the owners have withdrawn, he was the first possessor by virtue of the airspace of his house. And even though one could say that hefker is like a found object, and regarding a found object even with a rolling item we require that he be "running and reaching them," and certainly so regarding airspace, for hefker does not involve the intent of another party—nevertheless, its law is like a gift and it is considered as if the intent of another party transfers it, since this person declared it hefker of his own will, it is like the intent of another party transferring [Nimukei Yosef, first chapter of Bava Metzia]. But some say that hefker is like a found object and is not considered the intent of another party [Tosafot ibid. 12a, s.v. "Veyatza"]. And there is one who says that regarding a gift, since it is a legal doubt, if the recipient seized it we do not remove it from him according to the opinion of the Rambam, for in a legal doubt seizure is effective; and certainly regarding hefker, if the second person seized it we do not remove it from his hand, as written in siman 275, that if another came and took possession of it we do not remove it from his hand [Shach]. And some disagree, holding that regarding a gift seizure is not effective even according to the Rambam, for a gift never leaves the domain of the giver until it clearly comes into the hand of the recipient [Chavat Yair in the Turei Zahav].

That which we have said, that it is a doubt, in what case does this apply? In the airspace where it is not destined to come to rest. But if it is destined to come to rest, such as one who stands on a roof and threw it into a courtyard and gave it to the owner of the courtyard, and retracted while it was still in the airspace, it is considered as if it has come to rest, and he cannot retract, and the owner of the courtyard has acquired it. And this is specifically when it entered the airspace of the partitions, but in the airspace above the partitions, he has not acquired it [Tosafot Bava Kamma 70b]. And see Even HaEzer siman 139.