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Bava Metzia, 8

1) THE "KINYAN" OF RIDING AN ANIMAL

QUESTION: The Gemara asks why is it necessary for the Mishnah to teach that when two people are riding an animal and both claim to have found it that they split it? Why can this not be learned from the first Halachah of the Mishnah, in which two people are holding on to a Shtar? The Gemara answers that the Mishnah might be teaching that by riding an animal, a person can be Koneh it.

RASHI explains that the Gemara means that riding an animal can be Koneh it even if the rider does not use his feet to cause the animal to move ("Manhig b'Raglav") and thus his act does not qualify as "Meshichah."

Rashi's explanation is necessary since there are other sources that teach that Meshichah is Koneh (see Rashi 8b, DH Manhig), and therefore it would not be necessary for our Mishnah to teach it.

However, the Gemara later (8b) cites a Machlokes between Rebbi Meir and the Rabanan regarding whether or not a person riding an animal is Koneh it. Rebbi Meir rules that even one who is sitting on the animal without holding on to the reins as a rider does is still Koneh it. The Rabanan maintains that a person who is riding an animal is not Koneh the animal unless he is Manhig b'Raglav, using his feet to make it move. The Gemara there says that our Mishnah cannot be following the opinion of Rebbi Meir, for then it would not have to say that a *rider* is Koneh, for even one who is sitting on an animal is Koneh. Rather, the Mishnah must be following the view of the Rabanan, and thus it is referring to a person who is riding the animal as well as causing it to move with his feet. How, then, can the Gemara here say that we see from our Mishnah that the act of riding an animal is Koneh it without being Manhig b'Raglav? (ROSH 1:16)

In addition, why does the Mishnah teach two cases of people riding animals -- one case in which when both claimants are riding (Rochev) the animals, and one case in which one claimant is riding (Rochev) the animal and the other is guiding (Manhig) the animal?

ANSWERS:

(a) The ROSH argues with Rashi and explains the Chidush of the Mishnah differently. The Mishnah *is* discussing a rider who is causing the animal to move. The Chidush of the Mishnah is that even when *two* people are riding an animal and are causing it to move, the one sitting farther back is also Koneh. Without the Mishnah, we might have thought that the rider sitting in front is considered the primary rider causing the animal to move, while the one sitting behind him is not causing the animal to move in a normal manner and therefore he should not be Koneh the animal.

The case of one who is riding (Rochev) the animal and one who is guiding (Manhig) the animal is teaching that even if the rider is Manhig b'Raglav and therefore is doing more than the one who is being Manhig alone, nevertheless both the rider and the Manhig are Koneh the animal.

(b) Rashi learns that according to the Gemara's conclusion (8b), the main point of the Mishnah is that when one claimant is Rochev and one is Manhig, neither one's act overrides the other's, and they are both Koneh. This teaching applies both according to the Rabanan (who say that the person who is riding is also being Manhig b'Raglav), and according to Rebbi Meir (who says that the person is riding it without using his feet to make it move).

The Mishnah mentions the first case, in which they are both riding it, only in order to lead into the second case, in which one is riding and one is pulling the animal, and it is not to teach something new.

How can the Mishnah be discussing a rider who is not Manhig b'Raglav and be following the opinion of Rebbi Meir? The Gemara asks (8b) that if the Gemara is following the opinion of Rebbi Meir, then even one who is Yoshev is Koneh, so why does the Mishnah discuss only Rochev? It should mention Yoshev as well!

Rashi answers this question (8b, DH Rachuv Mibayei) by explaining that the Gemara is not asking that the Mishnah should have discussed Yoshev rather than Rochev (see MAHARI ABUHAV and RASHBA, cited in the Shitah Mekubetzes). As the Gemara points out, holding on to the reins does not make any difference with regard to Kinyan, and therefore Yoshev and Rochev are identical. The Gemara's question is only that it would not be necessary for Rebbi Meir to teach that Rochev is Koneh a second time, since he already taught that Halachah in Maseches Kil'ayim.

The Gemara answers that even according to the Rabanan, the Mishnah is not teaching a new Halachah when it discusses two people riding an animal, since it is referring to two people who are both Manhig b'Raglav, which is a normal form of a Kinyan Meshichah. Rather, according to both Rebbi Meir and the Rabanan, the case of two people riding the animal was mentioned in order to lead into the Halachah that when one of them is riding and one is guiding (Manhig), they are both Koneh (according to Rebbi Meir, they are Koneh even when the rider is not Manhig b'Raglav, and according to the Rabanan, only when the rider is Manhig b'Raglav is he Koneh it), as the MAHARSHA writes.

8b

QUESTION: The Gemara attempts to prove from our Mishnah that one who is riding (Rochev) an animal is Koneh the animal even though he is not using his feet to cause the animal to move (Manhig b'Raglav), according to the Rabanan who argue with Rebbi Meir. Even though one is not Koneh the animal by sitting on it (Yoshev), he is Koneh it by riding it because he holds on to the reins.

The Gemara proves this from the Mishnah which teaches that when two people are riding on an animal, or one is riding it and one is guiding it (Manhig), and each one claims that the animal is his, they split the animal ("Yachloku"). The Gemara says that the Mishnah cannot be following the view of Rebbi Meir, for if it were, then there would be no need to teach that Rochev is Koneh, because Rebbi Meir teaches (Kil'ayim 8:3) that even Yoshev is Koneh (see previous Insight). Rather, the Mishnah must be following the view of the Rabanan and teaching that Rochev is Koneh even though Yoshev is not Koneh.

The Gemara concludes that the Mishnah is indeed following the view of the Rabanan, but it is discussing a person who is Rochev and is Manhig b'Raglav -- using his feet to cause the animal to move. The main Chidush of the Mishnah is not that one who is Rochev and Manhig b'Raglav is Koneh the animal (see MAHARSHA), but rather that when one person is Rochev and one is Manhig, they split the animal even though the one who is Rochev is not only doing everything that the Manhig is doing (since the Rochev is also being Manhig it with his feet) but he is doing more (since he is also holding on to the animal by the reins).

Why does the Gemara not answer that the Mishnah is following the opinion of Rebbi Meir, and that the reason why the Mishnah writes specifically that Rochev is Koneh as opposed to Yoshev is because when one person is Manhig and one person is Yoshev, the Yoshev is *not* Koneh, since his act of Kinyan would be overpowered by that of the one who is Manhig? (RAMBAN)

ANSWERS:

(a) The TOSFOS HA'ROSH answers that the Gemara takes it for granted that holding on to the reins does not improve the act of Kinyan of one who is Rochev. Therefore, if the person who is Rochev receives half of the animal when the other claimant is Manhig, then one who is Yoshev should also receive half in such a situation. Only according to the Rabanan is it possible that holding on to the reins might improve his act of Kinyan, and that is when the rider is doing everything that the Manhig is doing, and in addition he is holding on to the reins. In such a case, we might have thought that the act of the Manhig is insignificant, and therefore the Mishnah teaches that the Manhig is Koneh nevertheless. (See TOSFOS DH Mahu d'Teima, and MAHARSHA in MAHADURA BASRA.)

(b) The RAMBAN writes that if we know that an act of Yoshev alone is Koneh, then a person who is Rochev will certainly be Koneh even when another person is being Manhig the animal, since the rider's act of Kinyan cannot be worse than that of a person who is sitting with no one else leading the animal.

(c) The RIVAN cited by the Tosfos ha'Rosh answers that the Mishnah in Kil'ayim in which Rebbi Meir says that one who is Yoshev is considered to be moving the animal is discussing a situation in which someone else is leading the animal at the same time. The Mishnah there is not giving two different cases -- one case in which a person is leading the animal and another in which a person is sitting in the wagon. Hence, we see from the Mishnah in Kil'ayim that Yoshev is considered an act of Kinyan even while someone else is being Manhig, and thus certainly Rochev is considered an act of Kinyan.

(d) According to the way we explained the Gemara according to Rashi (see previous Insight), the Gemara is not asking that the Mishnah should have said "Yoshev" instead of "Rochev" according to Rebbi Meir. Rather, the Gemara's question is what is the Mishnah teaching when it says that two people riding an animal split it. According to Rebbi Meir, we already know this Halachah (that Rochev is Koneh) from the Mishnah in Kil'ayim. It must be that our Mishnah is teaching that even according to the Rabanan, Rochev is Koneh while Yoshev is not Koneh.

The Gemara answers that the case of two people riding an animal indeed is not teaching any new Halachah. Rather, the Halachah that the Mishnah is teaching is that when one person is Rochev and one is Manhig, they split the animal. This Halachah is a Chidush, both according to the Rabanan (because it teaches that Rochev who is Manhig b'Raglav does not overpower one who is Manhig) and according to Rebbi Meir (because it teaches that Manhig does not overpower the act of a person who is merely Rochev or Yoshev on the animal without being Manhig b'Raglav).