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Bava Metzia, 12

1) ACQUIRING A "METZI'AH" THROUGH "KINYAN CHATZER"

QUESTION: The Gemara (11a) quotes Amora'im who teach that one's Chatzer which is not guarded ("she'Einah Mishtameres") cannot be Koneh a Metzi'ah for him unless he is standing next to his Chatzer. The Gemara questions this from the Mishnah in Ma'aser Sheni (5:9) which relates that Raban Gamliel, while traveling with other Tana'im, was Makneh his Ma'aseros to the other Tana'im by leasing to them a part of his land (which was not Mishtameres; see Tosfos DH v'Chi), thus enabling them to be Koneh the produce through Kinyan Chatzer, even though they were not standing beside the Chatzer. Rav Papa (11b) answers that a Matanah, a gift, is different, because when the giver gives the gift, "Da'as Acheres Makneh" -- it is being given to him by another person, and this enables the recipient's Chatzer which is not Mishtameres to be Koneh the gift even when he is not standing beside his Chatzer.

The Gemara (end of 11b) questions this from the case of a man who divorces his wife by throwing a Get into his wife's Chatzer. In that case, the wife must be standing next to her Chatzer in order to acquire the Get. Why does she need to be standing there if -- in the case of giving a Get -- there is "Da'as Acheres Makneh?" The Gemara (beginning of 12a) answers that since a Get is a Chov (detriment) to a woman, the Chatzer cannot be Koneh it for her without her being present ("Ein Chavin l'Adam Ela b'Fanav"), while a Matanah, which is a Zechus (benefit) to a person, does not require the person's presence ("Zachin l'Adam she'Lo b'Fanav").

This explains the difference between being Koneh a Get with one's Chatzer, and being Koneh a Matanah with one's Chatzer. What, though, is the difference between being Koneh a Matanah with one's Chatzer, and being Koneh a *Metzi'ah* with one's Chatzer! Why should "Da'as Acheres Makneh" be necessary to acquire an object through a Chatzer that is not Mishtameres when the owner of the Chatzer is not present? One's Chatzer should be Koneh a *Metzi'ah* as well through the principle of "Zachin l'Adam she'Lo b'Fanav," even when the owner of the Chatzer is not present! (RASHI and Rishonim)

If, for some reason, a Chatzer can acquire a Metzi'ah only through "Yad," and, therefore, the owner must be standing next to it (just like the woman who receives a Get in her Chatzer), then why does a Chatzer that is Mishtameres acquire a Metzi'ah for the owner even when the owner is not standing there? (See MAHARSHA, PNEI YEHOSHUA.)

ANSWERS:

(a) RASHI seems to be addressing these questions at length. However, his answers do not seem clear, and he also seems to repeat himself (see Rashi 11b, DH Ela Amar Rav Ashi). From the words of TOSFOS RABEINU PERETZ and other Rishonim, it is clear that Rashi is presenting two different approaches to our Sugya. Originally, he explained the Gemara in one way (which we will call his "Mahadura Kama"). Later, Rashi changed his mind and added another explanation (which we will call his "Mahadura Basra," and which appears in the beginning of DH Ela Amar Rav Ashi). (Rashi's Mahadura Basra is not complete in our editions of Rashi; a more complete version was printed in the Salonica printing of the Gemara and is cited in part by the Shitah Mekubetzes. However, there seem to be numerous printing errors in what is printed there. See Shitah Mekubetzes.)

The main difference between the two approaches is what the source is for the Halachah that one's Chatzer can serve as one's Shali'ach. Rashi in his Mahadura Kama explained that no verse is necessary to teach that a Chatzer can be a Shali'ach; once we know that a person can be a Shali'ach and perform an act for another person, it is obvious that a Chatzer can also be a Shali'ach for a person. This is the opinion of Rashi in all of his other comments in this Sugya, except for the part that he added in his Mahadura Basra, as described above. (See Rashi 10b, DH Mishum; 10b, DH Talmud Lomar; 11a, DH u'Mar Savar, and 11b DH Ela Amar Rav Ashi, and see Insights to 10b and 11a.) Based on this, Rashi had to use one approach to answer the questions we asked above.

In his Mahadura Basra, Rashi retracted this approached and explained that a Chatzer would *not* be considered a Shali'ach based on logic alone, and, therefore, a verse is necessary to teach that a Chatzer can be a Shali'ach. Because of this, he was able to use another approach to answer the questions that we asked above. This is also the approach of Tosfos (10b, DH v'Iy Mishum, as the Maharsha explains on 11a). The Maharsha and Maharam point out that this approach seems to be more logically consistent since we know that one who is not a "Bar Da'as" such as a Katan cannot be a Shali'ach. Why, then, should a Chatzer be able to be a Shali'ach if not for a verse specifically teaching that it can be a Shali'ach?

According to Rashi's approach in his Mahadura Basra, why is it that we learn from the verse regarding Geneivah that Chatzer works through Shelichus and not that it works through Yad, as we learn from the verse regarding Get?

TOSFOS RABEINU PERETZ explains that according to this approach, we must determine whether a Chatzer acts as a Shali'ach or as a Yad based on the context of the Halachah. With regard to Get, the verse must be teaching that a Chatzer can acquire the Get for the woman through Yad, since receiving a Get is a Chov for the woman, and therefore a Shali'ach would not be able to receive it for the woman without being appointed specifically by her for that purpose. Hence, the woman must be standing next to her Chatzer in order to acquire the Get, just like a hand is next to the body. With regard to a purchase, we assume that the verse is teaching that a Chatzer can acquire a purchase as a Shali'ach, since it is Zechus for the owner to acquire the object. Consequently, it is not necessary for the owner to be standing near the field.

With regard to a Metzi'ah, on one hand a Metzi'ah is a Zechus for the owner and therefore his Chatzer should acquire it for him, as a Shali'ach, even when he is not nearby. On the other hand, a Metzi'ah shares something in common with a Get, in that acquiring a Metzi'ah for the owner would cause a loss to others (as the Gemara explains on 8a) and therefore it should not be able to acquire the Metzi'ah through Shelichus. Only if the owner is nearby should his Chatzer be Koneh the Metzi'ah, through Yad.

Tosfos Rabeinu Peretz concludes that since it is not clear from the verse how a Chatzer should be Koneh a Metzi'ah, therefore we must assume that the Torah leaves it for the Chachamim to determine based on their logic how a Chatzer is Koneh a Metzi'ah ("Lo Masrah ha'Kasuv Ela la'Chachamim"). The Chachamim decided that if the Chatzer is Mishtameres then it should be Koneh as a Shali'ach even when the owner is not nearby. However, when it is not Mishtameres, it should only acquire through Yad, and only when the owner is nearby. (Perhaps the logic for this distinction is that when the Chatzer is Mishtameres, the acquisition of a Metzi'ah is not as damaging to others, since it is not within their grasp anyway.)

The RAN, cited by the NIMUKEI YOSEF, explains this further. Even though we rule that a person *is* able to be Koneh a Metzi'ah for someone else, and it is not considered to be a Chov to others, nevertheless a Chatzer will not be able to acquire a Metzi'ah for its owner through Shelichus because it is a Chov to others. The reason for this is because a person can acquire a Metzi'ah for someone else through the Migu that since he could have acquired it for himself, he can acquire it for others. A Chatzer, in contrast, cannot acquire a Metzi'ah for itself, and therefore it cannot acquire it for others.

(b) Rashi, in his Mahadura Kama, was not able to explain the way he explained in his Mahadura Basra, because Rashi held that we do not learn from a verse that a Chatzer can be a Shali'ach, but rather we know that a Chatzer works as a Shali'ach based on logic alone. Rashi therefore took a different approach. He explained that the reason a Chatzer cannot act as a Shali'ach to be Koneh a Metzi'ah is because an act of a Shali'ach requires that there be "Da'as," conscious intent, involved. When someone is purchasing an object with Kinyan Chatzer, there is conscious intent involved on the part of the one who is selling the object, even though the Shali'ach -- which is the Chatzer -- does not have conscious intent. However, when acquiring a Metzi'ah, there is no conscious intent involved, and therefore a Chatzer cannot act as a Shali'ach to be Koneh a Metzi'ah.

However, this does not answer why a Chatzer which is Mishtameres *can* acquire an object for its owner even when the owner is not standing nearby, nor why a Chatzer which is *not* Mishtameres can acquire an object for its owner when the owner *is* standing nearby. It would seem from the words of Rashi (11a, DH Iy Omed) that when the owner is standing next to his Chatzer which is not Mishtameres, it will not be Koneh a Metzi'ah through Yad, since the Torah gives a Chatzer the status of Yad only with regard to Get and not with regard to Metzi'ah. Rather, standing next to the Chatzer makes it Mishtameres, and therefore the Chatzer can be a Shali'ach. How does the fact that it is Mishtameres enable the Chatzer to become a Shali'ach? Perhaps Rashi understands that if the Chatzer is Mishtameres it is considered as though there is "Da'as," conscious intent, to acquire the object for the owner, since the fact that the Chatzer is guarded with the intent of the owner makes it as though the Chatzer intends to acquire that object for the owner.

(c) The RAN cited by the Nimukei Yosef explains that a Chatzer which is Mishtameres is considered like an extension of a person's Yad, since people normally place things which are in their hands into a Chatzer that is Mishtameres. That is why a Chatzer that is Mishtameres can acquire an object for the owner even when the owner is not nearby.

Why, then, can a Chatzer that is Mishtameres not acquire a Get for the woman unless the woman is nearby? The Ran answers that a Chatzer is considered an extension of the owner's hand only with regard to objects that a person takes from his hand and places into his Chatzer for safekeeping. However, with regard to a Get, since a woman is normally not interested in receiving a Get, she will not be interested in placing it somewhere for safe-keeping, and therefore she will not transfer it from her hand into her Chatzer. That is why a Chatzer cannot be Koneh a Get for the woman unless she is nearby, in which case it is considered to be her hand.

(d) The ROSH (1:31) explains that, actually, a Chatzer can be Koneh only when it is Mishtameres both for a Metzi'ah and for a Matanah. When the Chatzer is not Mishtameres, the Chatzer cannot be Koneh the item for the person, because even if the Chatzer works in the capacity of a Shali'ach, a person would not give his item into the hands of a Shali'ach who is not going to guard the item (which is what a "Chatzer she'Eino Mishtameres" is), and, therefore, a Chatzer that is not Mishtameres cannot be a Shali'ach. However, with regard to a Matanah, a Chatzer that is not actually being guarded is still considered a Chatzer that is Mishtameres and it works to be Koneh the item through Shelichus, since the person who is giving the object is standing next to it even though the owner is not. The recipient of the Matanah is willing to have the benefactor watch the Chatzer for him, and therefore the Chatzer becomes Mishtameres through the benefactor.

TOSFOS RABEINU PERETZ (quoting the explanation of Rabeinu Peretz) offers a similar explanation for why a Chatzer is considered Mishtameres with regard to a Matanah even when it is not actually guarded. He explains that it is not necessary for there to be a physical barrier preventing other people from taking what is in the Chatzer. Even if only the *Halachah* prevents others from taking what is in the Chatzer, it is considered Mishtameres since no one else has permission to take the object that is in the Chatzer except for the recipient of the gift. Therefore, with regard to a Matanah, since the one who gives the Matanah wants to give the item only to this recipient and to no one else, no one else has permission to take the item, and thus it is considered to be "guarded" while in the Chatzer of the recipient. A Metzi'ah, in contrast, is available for anyone to take, and thus it is not considered "guarded" unless the owner of the Chatzer is actually present and guarding his Chatzer, or unless there is a physical barrier preventing others from entering the Chatzer.

(See the RITVA, cited by the Shitah Mekubetzes, who offers an entirely different explanation for the Sugya. According to his explanation, Rav Ashi does not accept the distinction between Matanah and Metzi'ah and rules that in both cases the Chatzer must be Mishtameres, or else the owner must be standing next to the field, and that Raban Gamliel was Makneh the produce to the other Tana'im through Kinyan Agav.)

QUESTION: Rava asks whether or not a person can be Koneh a wallet that is thrown through the airspace of his Chatzer, from one side to the other, without landing in his Chatzer. Can the airspace above his Chatzer acquire it for him even though it is not destined to land in the Chatzer? The Gemara attempts to prove from the teaching of Rebbi Yirmiyah that the owner of the Chatzer *is* Koneh the wallet. Rebbi Yirmiyah teaches that although one's Chatzer cannot be Koneh a Metzi'ah -- such as an animal -- that is running through it unless the owner is able to run after and reach the animal while it is still in his field, nevertheless a Chatzer *can* be Koneh a Matanah that is being given to the Chatzer's owner even though the owner is unable to run after it and reach it before it leaves his field. If a Chatzer can be Koneh a Matanah that passes through it without stopping in it, then it should also be able to be Koneh a wallet that flies through its airspace without stopping in the Chatzer. The Gemara refutes this proof by explaining that perhaps an animal that is running over the ground of the Chatzer is considered as though it has stopped in the Chatzer, whereas an item that goes through the airspace is not considered to have stopped in the Chatzer.

It is obvious from the Gemara's proof that the wallet which is being thrown through the Chatzer is being given as a Matanah to the owner of the Chatzer, and is not a Metzi'ah. Why, then, does Rashi write that the person (DH Zarak) who threw the wallet made it Hefker for anyone to take? If it is Hefker, then it is like a Metzi'ah which is not being acquired through "Da'as Acheres Makneh!" It should not be comparable to an object that is being given as a Matanah and which is running through one's field. (TOSFOS DH v'Yatza)

A similar question may be asked on the ROSH. The Rosh explains that Rava's question applies both to a wallet of Hefker, and to a wallet that is being given as a Matanah. He concludes that Rava's question was not answered, and therefore if a wallet of Hefker was thrown through the airspace of the Chatzer, then the owner of the Chatzer is considered to be Muchzak mi'Safek in the wallet and no one else can take it from him.

Why does the Rosh write that the Halachah of a wallet of Hefker that passes through the airspace of one's field remains in doubt? We should be able to infer that the owner of the field certainly cannot acquire the wallet from the Halachah that a person cannot acquire a Metzi'ah that runs through his field when he cannot catch it before it leaves his field. If a Chatzer cannot even acquire what passes over the ground in such a case, it certainly cannot acquire what passes through its airspace!

ANSWERS:

(a) The ruling of the Rosh may be explained as follows. Perhaps the Halachah that the owner must be able to catch the object before it leaves his field does not apply to a wallet, but only to a live animal which moves of its own volition. An object that passes over the field will eventually land, and even if it lands outside of the field, the owner can easily recover it. An animal, in contrast, that runs through his field will continue running even after it leaves the field, and thus the owner cannot acquire it if he cannot reach it while it is still in his field.

However, this does not address our question on Rashi.

(b) The NIMUKEI YOSEF writes in the name of "Achronim" that it may be learned from Rashi that an object of Hefker can be considered "Da'as Acheres Makneh Oso." The MISHNEH LA'MELECH (Hilchos Mechirah 29:11) learns from here that according to Rashi, whenever someone acquires an object from Hefker, it is as if he is receiving a Matanah from the one who was Mafkir it. Hence, the only time that the owner will have to be able to reach the object before it leaves his property is when the object was not made Hefker by a person but rather it was never in another person's domain (such as a wild animal, like a deer or a bird).

The KETZOS HA'CHOSHEN (273:1) finds further support for this approach in the RAMBAM (Hilchos Nedarim 2:14) who writes that although Hefker is not a vow, it is similar to a vow in that a person cannot retract it. This implies that Hefker does not remove an item from a person's domain, but rather it requires him to let anyone take it for themselves. When someone else takes it, he is receiving it from the original owner and not from an ownerless domain.

However, the Ketzos ha'Choshen points out that this approach would seem to be contradicted by a number of Gemaras, such as the Gemara in Shabbos (11b) which teaches that when a person is Mafkir his object, the Mitzvah of Shevisas Kelim does not apply to it because it is no longer considered his. Also, in numerous places the Gemara applies the principle of "Hefker Beis Din Hefker" in a way which shows that the object leaves the domain of its previous owner (the Ketzos ha'Choshen suggests that "Hefker Beis Din" is stronger than a regular form of Hefker). This also seems clear from the Gemara in Nedarim (43a-b; see Insights there).

The NESIVOS HA'MISHPAT therefore explains that the Nimukei Yosef means to compare Hefker to Matanah only with regard to Kinyan Chatzer. He means that when the person who was Mafkir the object is throwing the object through the Chatzer, the Chatzer can acquire that object just as it can acquire it when the person is giving the object to the owner of the Chatzer as a Matanah. This might be based on the logic of the Rosh who writes that the one who gives the Matanah is making the Chatzer guarded, Mishtameres, on behalf of the recipient. Similarly, the Mafkir who threw the object through the airspace of the Chatzer is watching the Chatzer on behalf of the owner (the recipient of the Matanah).

(c) Others explain that the Nimukei Yosef does not mean that Hefker is like Matanah even with regard to Kinyan Chatzer. Rather, he means that in the case of our Gemara, a person threw a wallet through the airspace of the Chatzer with the intention that he wants to give it to whoever takes it first. Accordingly, this is not a true Hefker, but rather an open-ended Matanah (which anyone may take). If a person is Mafkir an object and leaves it in a public place, then it certainly leaves his domain immediately, as the Gemara in Nedarim explains. (See KOS YESHU'OS, LECHEM ABIRIM.)

Why does Rashi and the Nimukei Yosef explain that this is the case of the Gemara, rather than explain that the one who threw the wallet intended to give it as a Matanah specifically to the owner of the Chatzer?

The answer is that, as is evident from Tosfos, some manuscripts of the Gemara included the word "v'Afkerei" ("and he made it Hefker [to all]") in Rava's question. The Nimukei Yosef writes that this was also the Girsa of Rav Yehuda'i Ga'on. Rashi, then, is explaining the words of the Gemara according to his Girsa. He is explaining that the word "v'Afkerei" is not to be understood literally, but rather it means that the owner of the wallet made it available for all to be Koneh. The question may now be asked on the Gemara itself: why does Rava mention that the owner was Mafkir the wallet rather than that he was giving it as a Matanah to the owner of the Chatzer?

The answer might be that the Gemara was looking for a situation in which there will be a Nafka Minah whether the Chatzer is Koneh even when the one who threw the wallet does not change his mind. If the one who threw the wallet intended to give it specifically to the owner of the Chatzer, then it should make no difference whether the Chatzer is Koneh for him or not; he can still pick it up after it lands in another person's field, because it was given specifically to him and to no one else. In the case that Rashi describes, if the owner of the Chatzer is not Koneh the wallet, then the owner of the neighboring Chatzer in which the wallet lands will be Koneh it.

12b

QUESTIONS: The Mishnah (12a) states that when children who are Ketanim (minors) find a Metzi'ah, the Metzi'ah belongs to the father. When children who are Gedolim (adults) find a Metzi'ah, they keep it for themselves. Rebbi Chiya bar Aba in the name of Rebbi Yochanan explains that when the Mishnah mentions one's children who are Gedolim, it does not literally mean a Gadol, and when the Mishnah mentions one's children who are Ketanim, it does not literally mean a Katan. Rather, "Katan" refers to a child (whether a minor o r adult) who is still supported by his father, and "Gadol" refers to a child (whether a minor or adult) who is not supported by his father.

(a) Why does Rebbi Chiya bar Aba in the name of Rebbi Yochanan take the words in the Mishnah out of their literal and straightforward meaning? What is wrong with explaining that the words "one's children who are Ketanim" mean that they are minors, and that the words "one's children who are Gedolim" mean that they are adults (which is the way Shmuel (12a) understands the Mishnah)?

(b) Second, why does Rebbi Chiya bar Aba switch the order of the words as they appear in the Mishnah? The Mishnah first mentions "Katan" and then "Gadol," while Rebbi Chiya bar Aba says that "'Gadol' is not literal, and 'Katan' is not literal," changing the order.

ANSWERS:

(a) The IMREI ZUTRI answers the first question as follows. Rebbi Yochanan does not explain the Mishnah it its literal sense, because he infers from the Mishnah's words that "Katan" and "Gadol" are not to be understood literally. The Mishnah separates the cases of the Metzi'ah of one's child who is a Gadol, the Metzi'ah of one's Jewish servants, and the Metzi'ah of one's wife whom he divorced, and writes them as three distinct cases, instead of combining them all into one case ("the Metzi'ah of one's child who is a Gadol, one's Jewish servants, and one's wife whom he divorced"). Rebbi Yochanan infers from this that the Tana of the Mishnah is showing that the Halachos of the three cases are based on different principles. In the case of one's child who is a Gadol, the Halachah (that the Metzi'ah belongs to the child) depends on whether the child is supported by his father or not. In contrast, in the case of the Metzi'ah of one's divorced wife, even if the wife is still supported by the husband (as in the case of "Megureshes v'Eino Megureshes," as the Gemara later explains the Mishnah), she still keeps her Metzi'ah.

(b) The TORAS CHAIM answers that Rebbi Yochanan derives his explanation from the end of the Mishnah that says that the Metzi'ah of one's children who are Gedolim belong to them. If the Mishnah is referring literally to an adult child, then it is obvious that what he finds belongs to him, and there is no need for the Mishnah to tell us that! It must be that the Mishnah is not referring to an actual adult child, but rather it is teaching that a child who is a Katan is also considered an adult in this regard if he is not supported by his father.

From the fact that the end of the Mishnah which mentions children who are Gedolim is not literal but means children who are not supported by their father, Rebbi Yochanan derives that the beginning of the Mishnah -- which mentions children who are Ketanim -- is also not literal, and it means children who are supported by their father.

This also answers the second question. Since Rebbi Yochanan derives that the "Ketanim" of the Reisha of the Mishnah is not literal only from the word "Gedolim" of the Seifa of the Mishnah, he therefore changes the order and mentions that "Gadol" is not literal before mentioning that "Katan" is not literal. (I. Alshech)

(Shmuel, on the other hand, who understands the Mishnah in its literal sense, does not infer from the Seifa of the Mishnah that "Gedolim" cannot be literal, for otherwise there is no Chidush. Rather, he holds that, indeed, there is no Chidush when the Seifa of the Mishnah mentions children who are Gedolim, and it was mentioned only to parallel the Reisha which mentions children who are Ketanim (where there is a Chidush). Rebbi Yochanan, on the other hands, maintains that just like the other two cases in the Seifa are each teaching a Chidush, so, too, the case of children who are Gedolim must also be teaching a Chidush.)