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Bava Metzia, 11

1) THE "KINYAN" OF "CHATZER" FOR "GENEIVAH"

QUESTION: The Gemara explains that Rebbi Yochanan and Reish Lakish both agree that the Chatzer of a Ketanah acquires for her a Get through the mechanism of "Yad." They argue whether or not a Ketanah can also acquire a Metzi'ah with her Chatzer. RASHI explains that according to Reish Lakish, we do not learn the Kinyan of Chatzer for Metzi'ah from Get, and Chatzer works only as a Shali'ach and not as a Yad, as the verse teaches "Im Himatzei Timatzei" (Shemos 22:3). Rashi then adds another comment and asks, why did the Torah have to write that a person can acquire a Geneivah through a Chatzer if Chatzer works through Shelichus? He answers that we might have thought that the principle of "Ein Shali'ach l'Devar Aveirah" prevents the Chatzer from acquiring the item for the Ganav, and therefore the verse is necessary.

Rashi seems to contradict himself. Rashi first writes that we learn that Chatzer can acquire an object for a normally, monetary Kinyan, from the verse "Himatzei Timatzei." This implies that we would not have considered a Chatzer to be a Shali'ach based on logic alone (since a Shali'ach must be a "Bar Da'as;" see MAHARAM). On the other hand, Rashi concludes that the only reason the verse mentions that a Ganav is Koneh through Chatzer is to teach that we do not apply the principle of "Ein Shali'ach l'Devar Aveirah." This implies that it was *not* necessary for the verse to teach that Chatzer could be Koneh like a Shali'ach, for we would have known that without the verse. (RASHASH)

In addition, Rashi earlier clearly takes the second approach, that without a verse we would have known that a Chatzer works like a Shali'ach! (See Insights to 10:2, and MAHARSHA to Rashi here.)

ANSWERS:

(a) The GILYON (cited by the Shitah Mekubetzes) and the RASHASH explain that Rashi is learning that a verse is necessary to teach that Chatzer is considered a Shali'ach (not like Rashi wrote earlier). When Rashi writes that the verse teaches that we do not apply "Ein Shali'ach l'Devar Aveirah" he is not answering why a verse is necessary altogether, but rather he is answering why the Torah chose to teach that Chatzer works through Shelichus in the case of Geneivah as opposed to teaching it with regard to other cases of Dinei Mamonos. Rashi answers that it was written with regard to Geneivah to show that even for Geneivah, a Chatzer can be a Shali'ach and we do not say "Ein Shali'ach l'Devar Aveirah."

This does not reconcile Rashi's words here with what he writes earlier, where he writes that a Chatzer works through Shelichus based on logic alone. In addition, REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that if a verse would be necessary to teach either that Chatzer works through Yad or that it works through Shelichus, then why should we assume that the verse regarding Geneivah is teaching that Chatzer works through Shelichus? Perhaps it is teaching that Chatzer works through Yad! Even though the Gemara earlier does learn from the verse regarding Geneivah that Chatzer works through Shelichus according to Reish Lakish, nevertheless, now that we already have a verse (regarding Get) which is clearly teaching that Chatzer works through Yad, why should we assume that the verse regarding Geneivah is teaching that Chatzer works in a different manner? Perhaps that verse is teaching that Chatzer is Koneh through Yad for Geneivah just like it is Koneh for Get!

(b) Perhaps Rashi still maintains that a Chatzer can be considered a Shali'ach based on logic alone, consistent with what he writes earlier (10b). Hence, Rebbi Akiva Eiger's question is no longer applicable, since it is preferable to learn from the verse that Chatzer works as a Shali'ach for Geneivah (since there is logical basis for this). Even though an Aveirah is involved, the verse teaches that in this case it is logically acceptable for a Shali'ach (such as a Chatzer) to accomplish an Aveirah on behalf of the owner.

What, then, does Rashi mean when he writes that we learn that Chatzer works for Dinei Mamonos from the verse of "Himatzei Timatzei?" Rashi is explaining why a verse is necessary for Dinei Mamonos if we would know, based on logic alone, that a Chatzer can be a Shali'ach for Dinei Mamonos. Rashi is answering that although for Dinei Mamonos a Chatzer can be a Shali'ach, we might have thought that a Chatzer cannot be a Shali'ach for Geneivah, since it involves an Aveirah. (The RAMBAN, when explaining Rashi, asks the question of why a verse is necessary to teach that a Chatzer can be Koneh for Geneivah, and he gives the same answer. This also is the way the PNEI YEHOSHUA explains Rashi here in his first explanation.)

QUESTION: Rav Yehudah teaches that a "Sadeh she'Einah Mishtameres" -- a field that is not guarded -- can be Koneh an item for the owner only when he is standing next to his field. The Gemara cites proof to this from a Beraisa which discusses the Halachos of Shichechah. The Gemara understands the Beraisa to be saying that when a person hires workers to collect the sheaves of grain and the workers forget to collect one of the sheaves, normally that sheaf would become the property of the poor, in accordance with the laws of Shichechah. However, the Beraisa qualifies this and says that if the owner of the field remembers the sheaf which the workers forgot, then when the owner is standing next to the field it is not Shichechah, but when he is in the city (not near his field) the sheaf is Shichechah. The Gemara infers from here that when the owner is standing in, or adjacent to, his field, the field can be Koneh the sheaf for him, and therefore it does not become Shichechah. However, when he is in the city, since the field cannot be Koneh for him (for he is not standing next to it), the sheaf does become Shichechah.

The Gemara's comparison is difficult to understand. How can the Halachos of Kinyanim affect whether or not a sheaf becomes Shichechah? Crops that originally belong to the owner because they grew in his field are always able to become Shichechah! Nevertheless, when a person harvests his crops and forgets a sheaf, the Torah decrees that it becomes Shichechah and it leaves the ownership of the owner of the field! Why should the Kinyan Chatzer of the owner affect the Halachah of the sheaves that were forgotten by the workers, any more than it affects the Halachah of the sheaves that he himself forgot in a normal case of Shichechah?

In addition, at what point does the Kinyan Chatzer of the owner take effect on the sheaves which the workers forgot? Before the sheaves become Shichechah, the owner cannot be Koneh them because they are already his! After they become Shichechah, he cannot be Koneh them because they are already the property of the poor people!

ANSWERS:

(a) RASHI (DH Ela Lav) seems to understand that our Gemara is referring to a case in which the owner never forgot the sheaf, and it was only the workers who forgot it. When the Gemara says that the sheaf "was first remembered and then forgotten," it does no mean that the owner later forgot it. Rather, the owner realized that the workers might forget it (perhaps because it was in a remote part of the field), but he himself had it mind the entire time. The workers are the ones who forgot it when they collected the sheaves.

What difference does it make if the owner is standing next to the field or if he is in the city? Apparently, the difference is that when the owner is next to the field, we view him as the field's owner with regard to Shichechah. However, when he is in the city, we view the workers to be the field's owner with regard to Shichechah.

The Gemara assumes that the reason why we cannot view the actual owner as the owner with regard to Shichechah when he is in the city is because he is no longer associated with the field with regard to Kinyanim. If an object of Hefker would fall into the field it would not become his through Kinyan Chatzer. On the other hand, when he is in, or adjacent to, the field, even though he is not actively collecting the sheaves, since the field can be Koneh an object of Hefker for him he is considered the owner with regard to Shichechah as well. According to this, when the Gemara says that when the owner is in the city "he is not near the field such that it could be Zocheh for him," it does not mean that the field cannot be Zocheh for him the sheaves that were forgotten, but rather it means that the field cannot be Koneh a Metzi'ah for him and therefore he is not considered the owner with regard to Shichechah.

(b) TOSFOS (DH Zachur) explains that the owner himself originally remembered the sheaf and later forgot it. Tosfos asks why should this sheaf be different than any other forgotten sheaf (such as when the owner is collecting the sheaves himself and he forgets one)?

Tosfos answers that since the owner still remembered the sheaf even at the moment that the workers forgot it, he may be Zocheh it for himself.

The RAMBAN and RAN explain this further. They write that when workers are collecting the sheaves for the owner, there are two requirements to become Shichechah: the sheaf must be forgotten both by the owner and by the workers. When the sheaf is forgotten only by the workers but not by the owner, it enters a stage of half-Shichechah, wherein it leaves the possession of the owner but it does not yet enter the possession of the poor people. At that stage, since the sheaf does not belong already to the owner (since it has left his possession), he is able to be Koneh it through Kinyan Chatzer (since it is not yet the property of the poor people). If he is Koneh it at that point, the sheaf is prevented from becoming Shichechah.

(c) The RA'AVAD explains also that the owner himself eventually forgot the sheaf. Nevertheless, if the owner is in the field, his Kinyan Chatzer can prevent the sheaf from becoming Shichechah. He explains this as follows.

Shichechah normally takes effect at the moment that the owner turns away from the sheaf that he forgot to collect. The reason for this is because the prohibition that describes the Mitzvah of Shichechah states, "You shall not *return* to collect it" (Devarim 24:19), which implies that the moment one turns away from it while he is collecting it, he may not go back to collect it, and it becomes Shichechah. Normally, a sheaf becomes Shichechah only when the owner does not remember it at the time that he turns his back to it. The sheaf discussed in the case of the Beraisa does not become Shichechah because the owner remembered it at the time that he turned away, and only later did he forget it. At the time that he turns away -- since that is the point at which Shichechah normally takes effect -- a Kinyan Chatzer can "acquire" it for him. If, at that point, the sheaf is lying in a place in which the owner could have acquired it had it been Hefker, it is considered as though the sheaf is in his hand. A sheaf that a person is carrying in his hand cannot become Shichechah even if he later forgets it.

The Ra'avad's words are not clear. Why should a Kinyan Chatzer take effect on an object if it did not yet become Shichechah because he did not forget it? If a Kinyan Chatzer does take effect, then it should take effect even if the owner *does* forget the sheaf at the time that he turns away!

Perhaps the Ra'avad means that when the owner remembers the sheaf when he turns away and later forgets it, Shichechah takes effect retroactively from the time that the owner turned away ("mi'Kan u'l'ha'Ba l'Mafrei'a," see Insights to Nedarim 52a). Therefore, at the time that the owner turns away, Shichechah begins to take effect, but it does not take effect completely until later when the owner forgets it. Since Shichechah started to take effect, it is removed from the owner's possession but is not yet in the possession of the poor people (as we wrote above in the name of the Ran), and therefore Kinyan Chatzer can take effect on it to make as though it is in the hands of the owner. If the owner forgot the sheaf at the time that he turned away, then he cannot acquire it through Chatzer since it has already become Shichechah and belongs to the poor people.

In any event, the Ra'avad concludes that if the owner is now in the city, and before he left the field he remembered the sheaf but forgot it after coming to the city, the field can no longer acquire objects for him through Kinyan Chatzer. Therefore, the sheaf is not considered to be in the hands of the owner, and Shichechah can take effect on it.

11b