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Avodah Zarah, 71

1) HALACHAH: "KINYAN MESHICHAH" FOR A NOCHRI

OPINIONS: The Gemara records the view of Ameimar who rules that the act of Meshichah is a valid Kinyan for a Nochri. Rav Ashi refutes Ameimar's proof. What is the Halachah in practice?

Actually, this question can be asked with regard to the Kinyan of Meshichah for a Jew. The Gemara in Bava Metzia (47b) records a Machlokes between Rebbi Yochanan and Reish Lakish regarding which Kinyan the Torah prescribes for a Jew who wants to acquire Metaltelin. Rebbi Yochanan maintains that mid'Oraisa a Jew is able to acquire Metaltelin through Kinyan Kesef but not Meshichah, and the Rabanan instituted the Kinyan of Meshichah. Reish Lakish argues that mid'Oraisa a Jew can acquire Metaltelin through Meshichah, and there is no Kinyan Kesef for a Jew.

The Gemara in Bechoros (13a) teaches that just as a Jew has one Kinyan for acquiring Metaltelin, so, too, a Nochri has one Kinyan for acquiring Metaltelin. However, the Kinyan of the Nochri is not the same as the Kinyan of the Jew. From this the Rishonim learn that according to Rebbi Yochanan -- who says that a Jew is Koneh with Kesef -- the Kinyan that the Torah prescribes for a Nochri is Meshichah. According to Reish Lakish -- who says that a Jew is Koneh with Meshichah -- the Kinyan that the Torah prescribes for a Nochri is Kesef (see Insights to Bava Metzia 48:a:4).

Our question, therefore, can be summarized in terms of the Kinyan of a Jew. Is the Halachah like Rebbi Yochanan, who says that mid'Oraisa a Jew is Koneh with Kesef, and therefore a Nochri is Koneh with Meshichah, or does the Halachah follow the view of Reish Lakish, who says that mid'Oraisa a Jew is Koneh with Meshichah, and thus a Nochri is Koneh with Kesef?

(a) RASHI in Kidushin (14b, DH Ho'il; see also Rashi later on 73a, DH Oved Kochavim) seems to rule in accordance with Reish Lakish, who says that Meshichah is a valid Kinyan mid'Oraisa for a Jew but not for a Nochri. The Gemara there mentions that it is logical that (as the Torah states) an Eved Ivri can be acquired by a Nochri through money, since all of the Nochri's acquisitions (of Metaltelin) are effected through money. Rashi explains that the source for this is that the verse from which we derive the Kinyan of Meshichah is referring only to a Kinyan made by a Jew, as it says, "Kanoh mi'Yad *Amisecha*..." -- "[When you...] acquire from the hand of *your friend*..." (Vayikra 25:14). There is no verse teaching that Meshichah works for a Nochri, and that is why the Gemara there says that all of a Nochri's acquisitions are made through the transfer of money.

(b) TOSFOS here (DH Rav Ashi; see also Tosfos in Kidushin 14b, DH Ho'il) comments that there is a rule (see Yevamos 36a) that whenever Rebbi Yochanan and Reish Lakish argue, the Halachah follows the view of Rebbi Yochanan, except in three cases. Accordingly, we cannot follow the view of Reish Lakish and rule that Meshichah is a valid Kinyan for a Jew, and therefore Kesef for a Nochri. Rather, Meshichah is a valid Kinyan for a Nochri.

Tosfos addresses the fact that Rava in Bava Metzia (48a) supports Reish Lakish's opinion with both a verse and a Beraisa. Tosfos points out that the Gemara refutes conclusively Rava's proofs. In addition, it is evident that Rava himself does not rule like Reish Lakish. It is Rava himself who states (in Yevamos 36a) that we rule like Reish Lakish against Rebbi Yochanan only in three cases, and he does not mention this case as one of the exceptions. The Gemara later in Avodah Zarah (72a) also concludes that Meshichah works for a Nochri (as Rebbi Yochanan rules).

How, though, does Tosfos understand the Gemara in Kidushin that states that the acquisitions of a Nochri are done through Kesef, and not Meshichah? RABEINU TAM there answers that when the Gemara says that all of a Nochri's acquisitions are effected through money, it means that all of a Nochri's acquisitions of *Jewish slaves* are done through Kesef, as implied by the verse cited earlier in the Gemara there.

(c) The RAMBAM (Hilchos Zechiyah u'Matanah 1:14) writes that "a Nochri who sells Metaltelin to a Jew, or buys them from a Jew, acquires them with Meshichah and relinquishes them [to the Jew] with either Meshichah or the payment of money." The KESEF MISHNEH and MAGID MISHNEH understand that the Rambam's statement, "or the payment of money," is also referring back to the first part of his ruling, meaning that a Nochri may also *acquire* objects with Kesef. They explain that when the Gemara asks whether or not Meshichah works for a Nochri, it is actually asking whether or not *even* Meshichah works for a Nochri, but certainly Kinyan Kesef works for a Nochri (this explanation of the Gemara clearly conflicts with the Gemara in Bechoros; the Magid Mishneh says that the Gemara here argues with the Gemara in Bechoros, and we rule in accordance with our Gemara). The LECHEM MISHNEH, on the other hand, understands the Rambam's words literally, and the Rambam is saying that a Nochri cannot acquire with Kesef. According to the Lechem Mishneh, the Rambam rules in accordance with the simple understanding of Tosfos, that a Nochri can acquire only with Meshichah.

Because of this dispute among the Poskim regarding what Kinyan is valid for a Nochri, the accepted solution is to use both methods of acquisition when dealing with a Nochri, such as when selling Chametz to a Nochri before Pesach (see HAGAHOS ASHIRI 5:2, MORDECHAI to Bava Metzia 4:302, and SHULCHAN ARUCH YD 320:6). The MISHNAH BERURAH (OC 448:17) also writes that one should perform both methods of acquisition, but he states that at least one should do Meshichah, since that Kinyan is the one of the two Kinyanim which works according to most Poskim (see TESHUVOS HA'REMA #87, CHOK YAKOV OC 448:14). However, if someone sold his Chametz using only the method of Kesef (or other methods of Kinyan besides Meshichah which are valid according to some opinions), he would be allowed to benefit from the Chametz after Pesach. Since the prohibition against eating Chametz owned by a Jew during Pesach is only a penalty mid'Rabanan, one may rely on the opinion that Kesef is a valid Kinyan.

71b

OPINIONS: The Gemara asks that when wine is poured into a Nochri's container which is resting on the ground, the wine is immediately acquired by the Nochri when it enters the container. Through what type of Kinyan, though, does the Nochri acquire the wine?

(a) The MEKOR CHAYIM (OC 448) quotes the ASIFAS ZEKENIM in Bava Metzia (11a) who says that the acquisition of an object placed in one's vessel is included in Kinyan Chatzer. Just as an object placed in a person's Chatzer becomes the property of the owner through Kinyan Chatzer, so, too, an object placed in a person's vessel. The fact that this method of acquisition works through the mechanism of Kinyan Chatzer is also stated by the RAMBAN, RASHBA, RITVA and other Rishonim in Bava Metzia (9b). The Mekor Chayim proves from the question of our Gemara that a Kinyan Chatzer is Halachically binding for a Nochri. This also seems to be the opinion of the ROSH in Bechoros (1:2), the TUR, and the SHULCHAN ARUCH (YD 320:6). Based on these opinions, RAV MOSHE FEINSTEIN zt'l (in IGROS MOSHE, YD 2:143) concludes that in a pressing situation one may rely on the Kinyan Chatzer together with Kinyan Kesef.

(b) The GILYON MAHARSHA and IGROS MOSHE (ibid.) deduce from TOSFOS (71a, DH Rav Ashi) that a Kinyan Chatzer does not work for a Nochri. Tosfos discusses the proper method to be used in order to give a Nochri possession of an animal which is pregnant with its firstborn (this transfer of ownership is made in order to avoid the Kedushah of Bechor that would take effect if the animal gives birth while in the possession of a Jew). Tosfos states that the Jew should make sure that he receives money and that a proper Meshichah is done, bringing the animal into the domain of the Nochri. If the Nochri has no domain into which to pull the animal, then the Jew should give him some of his own property and let the Nochri pull the animal into that domain. These Acharonim point out that if Tosfos was of the opinion that a Kinyan Chatzer works for a Nochri, then he would not have required the Nochri to *pull* (Meshichah) the animal into his domain. His Chatzer would have been able to be Koneh the animal merely by the animal entering the Chatzer on its own, or by being placed there by the seller. It seems, therefore, that Tosfos maintains that Kinyan Chatzer does not work for a Nochri.

The TESHUVOS PNEI YEHOSHUA (OC 2:5) similarly writes that a Nochri has no Kinyan Chatzer, and he refutes the proof of the Mekor Chayim. He explains that the only reason why the Gemara here implies that a Kinyan Chatzer works for a Nochri is because it is Rav Ashi who is discussing the issue. Rav Ashi in Bava Metzia (71b) maintains that a Nochri is able to act as a Shali'ach for a Jew. According to one opinion in Bava Metzia (10b; see Insights there), a Kinyan Chatzer works because of the concept of Shelichus, with the Chatzer serving as a "Shali'ach" for its owner to acquire the object placed there. Hence, only according to Rav Ashi could a Kinyan Chatzer work for a Nocrhi. The Halachah, though, follows the other opinions in Bava Metzia who maintain that a Nochri cannot serve as a Shali'ach (the Gemara there even calls Rav Ashi's statement a mistake), and thus a Nochri cannot make a Kinyan Chatzer.

The KETZOS HA'CHOSHEN (CM 195:3) makes this point as well. The NACHALAS SHIV'AH (#30) quotes the MAHARASH KEIDANOVER who points out that the practice regarding the sale of Chametz to a Nochri before Pesach is to use both Kinyan Kesef and Kinyan Shtar in which the Jew transfers to the Nochri the ownership of the property on which the Chametz is resting. Once the Nochri owns the land, he also acquires the Chametz through ownership of the land, which is essentially a Kinyan Chatzer. The Maharash says that he does not understand how this works with a Nochri, as a Nochri has no Shelichus; how can he acquire the Chametz through a Kinyan Chatzer which works through Shelichus? The Ketzos ha'Choshen argues that the Rosh in Bechoros, the Tur, and the Shulchan Aruch quoted above are not talking about Kinyan Chatzer (see Igros Moshe, loc. cit., who argues that the Rosh and Tur indeed are saying that a Nochri has a Kinyan Chatzer). The Ketzos ha'Choshen first mentions our Gemara as a response to the Maharash's claim and to show that a Nochri does have a Kinyan Chatzer. However, he concludes -- like the Teshuvos Pnei Yehoshua -- that our Gemara is discussing only the opinion of Rav Ashi, who maintains that a Nochri is able to be a Shali'ach. (Y. Montrose)