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Kidushin, 26

1) THE KINYAN OF "HAGBAHAH"

QUESTIONS: The Gemara explains that the Kinyan of Hagbahah can be accomplished not only by physically lifting an object, but even by causing it to rise. Therefore, one can acquire an elephant with Hagbahah by guiding it so that it stands on top of bundles of branches such that its feet are three Tefachim from the ground. According to RABEINU MESHULAM in TOSFOS (DH Iy Nami), the Gemara means that a person can dangle food in front of an elephant so that it lifts itself off the ground, and that is considered Hagbahah.

This seems to be one of the essential differences between the Kinyan of Hagbahah and the Kinyan of Chatzer (or Yad). The Torah teaches ("v'Nasan b'Yadah" (Devarim 24:1; Gitin 77a)) that a person acquires whatever is placed into his hand (Yad) or courtyard (Chatzer). Hagbahah is similar to Meshichah; it is only a Kinyan d'Rabanan according to Rebbi Yochanan, and according to Reish Lakish it is a Kinyan d'Oraisa (RAMBAN RITVA and RAN, 25b; see also SEFER HA'MITZVOS of the Rambam #245).

Why is it necessary to have a separate Kinyan of Hagbahah, if every time a person grasps something and lifts it up, he acquires it through the Kinyan of Yad? From our Gemara we see that the Kinyan of Hagbahah allows a person to be Koneh something without even touching it, as long as he *causes* it to be lifted, and in this manner Hagbahah works where Yad is not being used.

However, there are a number of questions on this point.

(a) Before the Gemara suggests that Hagbahah can be done to acquire an elephant by causing it to rise, the Gemara seems to think that Hagbahah must be done by actually lifting the item. How, then, did the Gemara understand why it is necessary to have a separate Kinyan of Hagbahah? Every time a person lifts something up, he should be Koneh it through Yad, and the Kinyan of Hagbahah is not necessary!

Similarly, we find earlier (22b) that if a person lifts up an Eved Kena'ani, he is not Koneh the Eved (according to the Tana Kama). We know that one can acquire an Eved Kena'ani through Chatzer (since even land can be acquired through Chatzer -- see RASHBA, Gitin 21b). Why, then, should the master not acquire the Eved through Kinyan *Yad* when he picks up the Eved? (NESIVOS HA'MISHPAT 196:2)

Also, TOSFOS in a number of places (see Tosfos here; Bava Kama 29b, DH Ela; Eruvin 79b, DH Tzarich) proves that Hagbahah done by lifting the item one Tefach suffices. He proves this from the Gemara in Eruvin (79b) which says that lifting the barrel of wine used for Shituf Mavu'os one Tefach from the ground is sufficient to make a Kinyan on the barrel on behalf of those living in the Mavuy. Why, though, should it be necessary to perform Hagbahah on the barrel altogether? The moment he grasps it and picks it up, he should be Koneh it with "Yad!"

(b) RASHI writes in a number of places (see Rashi here, DH b'Chavilei) that Hagbahah involves lifting an object at least three Tefachim off of the ground. Because of this requirement, Rashi concludes in Kesuvos (31a, DH d'Iy Ba'i Gachin) that if a person eats someone else's Chelev by picking it up below three Tefachim and putting it in his mouth (also below three Tefachim), he is not Koneh the Chelev with Hagbahah before he actually eats it. Why, though, is he not Koneh the Chelev through Kinyan Yad, since he is holding it in his hand (or mouth) even when it is below three Tefachim! (Tosfos in Kesuvos 31a, DH d'Iy Ba'i, and 31b, DH Rav Ashi)

Although Rashi there (Kesuvos 31b, DH k'd'Rava; see MAHARSHA 31a) seems to learn that the Amora'im argue over this point, and, according to Rava, an object that is in a person's hands below three Tefachim *can* be acquired through Hagbahah, nevertheless he still seems to be addressing Kinyan Hagbahah and not Kinyan Yad. Why is the person not Koneh the Chelev through Yad?

(c) The Gemara in Gitin (21a) teaches that a man can put a Get into the hand of his Eved and be Makneh the Eved to his wife, and she becomes divorced because "Gitah v'Yadah Ba'in k'Echad." The Gemara says that the Eved must be tied up in order for the woman to become divorced, for if the Eved is not tied up, he is not considered her Chatzer that can acquire a Get for her, because he is a "Chatzer that walks" and is "not guarded by her." We know that anything an Eved receives belongs to his master (23b). Why, then, should the woman not become divorced? When the Eved lifted up the Get, he should have been Koneh it with Hagbahah, even if he was not tied up. Since the husband was Makneh the Eved to the woman, the Eved's Hagbahah should acquire the Get on behalf of the woman! Why does he need to acquire it with a Kinyan Chatzer (and if he is not tied up, the Kinyan Chatzer will not work)? (NESIVOS HA'MISHPAT 188:1)

ANSWERS:

(a) It is clear from these questions that even when a person lifts something with his hand, he does not always make a Kinyan Yad on it. The NESIVOS HA'MISHPAT (198:5, 268:2) writes that only what is inside, or above, the hand is acquired through Kinyan Yad. An item that is in the hand but that protrudes over the sides of the hand is not acquired through Kinyan Yad, but only through Hagbahah. He compares this to an object which is resting partially inside a Chatzer and partially outside of it, which cannot be acquired with Kinyan Chatzer (see Insights to Gitin 78:1). This is why lifting up the Eved or lifting up the barrel will not be a Kinyan Yad. (See Nesivos ha'Mishpat (196:2) who suggests another answer for why lifting the Eved is not a Kinyan Yad.)

We may question this assumption of the Nesivos. When the Torah describes the Kinyan of Yad in the case of a Get, it says "v'Nasan b'Yadah," implying that any manner in which the Get is placed in her hand causes her to be divorced, even if part of the Get protrudes from her hand. This implies that even when part of the Get protrudes over the side of the hand, it can still be acquired through Kinyan Yad.

In fact, even when making a Kinyan Chatzer, it would seem that if a person owns a flat rock, anything placed on top of the rock can be acquired through Chatzer even if it protrudes over the edge of the rock, since the item is resting entirely on his property (i.e. on the rock). The reason why Kinyan Chatzer does not work when the item is resting part inside and part outside of the Chatzer is because it is being supported partially by another person's Chatzer.

Perhaps we can suggest another reason why one cannot acquire an Eved or barrel through Kinyan Yad by lifting it. When an object is too heavy to lift with one hand, the only way that it stays in the person's hand is because he is applying pressure with the other hand to keep the item from falling. In such a case, the object cannot be said to be "resting" on the person's hand. Rather, it is comparable to nailing an item to a wall. Even though the object is kept in place by the nail, it cannot be called "resting" on the nail (or on the wall for that matter) and thus the owner of the nail cannot acquire the item through Kinyan Chatzer. The only time Yad can make a Kinyan is when an object is *resting* on the hand (like a Get), just like an object rests on the ground.

(b) Regarding the second question concerning Rashi's view that when the hand is below three Tefachim it cannot be Koneh an item inside of it, the KOVETZ SHI'URIM (Kesuvos 31b) suggests that the verse ("v'Nasan b'Yadah") might be referring only to when the hand of the woman is above three Tefachim from the ground. TOSFOS (Kesuvos 31a), however, appears to avoid this answer by citing the Gemara in Gitin (78a) which says that when a basket is tied to the woman by a string, even though the basket alone cannot acquire the Get through Kinyan Chatzer because it is resting on the property of the husband, nevertheless it is considered like the Get is given directly to the woman since her basket is attached to her. We see from the Gemara there that what is attached to the woman *can* acquire the Get for her even when it is *below* three Tefachim from the ground. Why, then, should the hand of the woman be any less of a Kinyan than a basket that is attached to her?

We may explain Rashi's opinion that the hand is not Koneh an item when it is under three Tefachim as follows. The Gemara in Gitin, which discusses the woman's basket, is discussing whether the vessels of one person can be Koneh for him while they are resting in the domain of another person. If they can be Koneh, then the basket does not have to be attached to the woman, and if they cannot be Koneh, then the basket must be attached to the woman. When it is attached to the woman, the husband does not mind that the basket is resting on his property, and therefore the vessel of the woman in the domain of the husband can be Koneh for her (see Insights to Gitin 78:1).

Accordingly, we can suggest that when Rashi writes in Kesuvos that the hand cannot be Koneh an item under three Tefachim in someone else's domain, he is not following the opinion that holds that the vessels of the buyer can be Koneh in the domain of the seller, because that opinion would certainly say that the hand is no worse than the vessel of the buyer and can acquire what is inside of it, even though someone else's domain is beneath it. However, according to the opinion that holds that the vessels of the buyer cannot be Koneh in the domain of the seller, the hand is no different than the vessel of the buyer, and if it is in someone else's domain it cannot be Koneh (through Kinyan Yad), even if it is more than three Tefachim off of the ground. Nevertheless, when a husband gives his wife a Get, she *is* Koneh through Yad, even if she is in his domain. The reason for this is because the husband does not mind that his wife is standing on a certain part of his property, as is clear from the Gemara in Gitin (78a). (Even though Amora'im there argue whether the husband is Makpid on the area between her legs when she is sitting down, everyone agrees that he is not Makpid on the area immediately underneath her.)

When Rashi in Kesuvos writes that the hand is not Koneh below three Tefachim, he is not discussing a Get being given to a wife, but rather a thief who is stealing something. The owner of the property, in such a case, certainly minds that the thief is standing on his property! Therefore, the thief will not be able to be Koneh with Yad unless he leaves the domain of the owner. That is why the thief has to lift the item at least three Tefachim high -- in order to be Koneh the item through Hagbahah.

(c) A Get delivered to the hand of the wife's Eved cannot take effect through the principle of "everything the Eved acquires, his master acquires" ("Mah she'Kanah Eved, Kanah Rabo"). Such a type of Kinyan does not qualify as "v'Nasan b'Yadah," placing the Get in the *hand* -- or property -- of the wife, unless the Eved is considered a Chatzer of the wife (e.g. he is tied up). (It also might not be valid because of "Teli Gitech m'Al Gabei Karka," since it is the wife's relationship to her slave that places the Get in her possession, and not the husband's act of handing it over.)

The Nesivos (ibid.) asks, though, that if the wife has her Eved pick up the Get for her, it should be called "Hagbahah mi'Kochah," and it should be Koneh directly for the woman with Hagbahah -- like causing an elephant to walk on a raised area is Koneh it with Hagbahah.

The NESIVOS HA'MISHPAT answers that a woman cannot become divorced through Hagbahah of the Get either. Hagbahah also does not qualify as "v'Nasan b'Yadah." Only Chatzer or Yad can acquire a Get for the wife and divorce her. (See TOSFOS in Gitin 21b, who implies that a woman can become divorced when she acquires the Get through Meshichah, and Acharonim there.)

26b

QUESTION: The Gemara discusses whether -- when acquiring Metaltelin (mobile property) through a Kinyan Agav -- it is necessary for the mobile property to be "piled" on the land through which it is being acquired, or whether the Kinyan will take effect even if the mobile property is somewhere else.

How can the Gemara propose the possibility that the Metaltelin must be resting on the land in order to be acquired through Kinyan Agav? If it must be "Tzevurim," piled on the land, then the buyer will be Koneh it through Kinyan *Chatzer* and it would not be necessary to be Koneh it with Kinyan Agav! Agav is only necessary because the item does not have to be in the Chatzer! (RITVA)

ANSWERS:

(a) The RITVA explains that the Chatzer with which the person makes the Kinyan Agav is a Chatzer "she'Einah Mishtameres," it is not protected. Therefore, it cannot acquire the Metaltelin through Kinyan Chatzer. That is why it is necessary to be Koneh the Metaltelin through Agav, even though they are resting on the land.

The answer of the Ritva does not seem to conform to all of the opinions mentioned in the Gemara in Bava Metzia (11b). The Gemara there discusses whether a Chatzer that is not protected can be Koneh objects in it through Kinyan Chatzer. Ula and Shmuel say that such a Chatzer cannot be Koneh, unless the owner is standing next to it (making it a Chatzer that *is* guarded). Rebbi Aba attempts to prove that the Chatzer can be Koneh the object even when the owner is not there. His proof is from the story of Raban Gamliel and the Zekenim who were together on the boat (which the Gemara here cites as well). Rebbi Aba was assuming that the Zekenim accompanying Raban Gamliel were Koneh from him the Ma'aser and Ma'aser Ani via his Chatzer that he leased to them, even though the Chatzer was not guarded. The Gemara there suggests two ways to refute this proof. First, it says that the Zekenim were Koneh with Kinyan Agav and not with Kinyan Chatzer. Second, Rav Papa answers that a Chatzer that is not guarded *does* work to be Koneh a *gift*, when there is someone giving the item ("Da'as Acheres Makneh"); it cannot work to be Koneh an item from Hefker when there is no one giving the item.

The Ritva's answer suffices according to the Gemara's first answer in Bava Metzia that holds that even when someone is giving a gift ("Da'as Acheres Makneh"), a Chatzer that is not guarded cannot be Koneh the gift for the recipient, and therefore the only way the Zekenim could have been Koneh the Ma'aser which was resting in the Chatzer was through Kinyan Agav. However, according to Rav Papa's answer, the Zekenim were able to be Koneh what was resting in their Chatzer with Kinyan Chatzer even though it was not a Chatzer that was guarded!

Every case of Kinyan Agav is, by nature, a case of "Da'as Acheres Makneh," where there is someone giving the item, because Kinyan Agav requires that there be a giver who tells the recipient to be Koneh through Agav (as the Gemara says on 27a). If, however, Agav requires "Tzevurim," then the recipient should always be Koneh with Chatzer! What would be the advantage of Kinyan Agav altogether?

Apparently, the Ritva means to say that our Gemara does not accept the opinion of Rav Papa who says that one can be Makneh a gift with a Chatzer that is not guarded, and therefore the only way to acquire an item resting in a Chatzer that is not guarded is through Kinyan Agav. That is why the Gemara asks whether Kinyan Agav requires "Tzevurim" or not, and it does not assume that if the Metaltelin are "Tzevurim" one will be Koneh them with Kinyan Chatzer.

According to Rav Papa, it is obvious that a Kinyan Agav does not require the item to be resting on the property. (Indeed, this is the Gemara's conclusion.)

(b) The SHITAH LO NODA L'MI cites "BA'ALEI TOSFOS" who write that the reason why Metaltelin that are piled in a Chatzer cannot be acquired through Kinyan Chatzer is because Kinyan Chatzer can only be Koneh an object which came to the Chatzer *after* the Chatzer became the property of the buyer (and it cannot be Koneh what was in the Chatzer before it became this person's property). The Shitah Lo Noda l'Mi might be referring to the TOSFOS CHITZONIYOS cited by Shitah Mekubetzes in Bava Metzia (end of 25b, and quoted in the KETZOS HA'CHOSHEN 198:2, and the MACHANEH EFRAIM, Hilchos Kinyan Chatzer #13) who also gives this answer. The HAGAHOS ASHIRI there also writes this distinction.

The Ketzos ha'Choshen and Machaneh Efraim question this distinction based on the Gemara in Bava Metzia where Rav Papa says clearly that the Zekenim were Koneh from Raban Gamliel with Kinyan Chatzer, even though Raban Gamliel gave them the Chatzer beneath the Ma'aser *after* the Ma'aser was already resting there.

The answer is that, apparently, the Tosfos Chitzoniyos is also assuming that our Gemara's question does not conform with the opinion of Rav Papa, but rather it conforms with the other answer of the Gemara in Bava Metzia which says that the Zekenim were Koneh with Kinyan Agav. He is suggesting that according to those who say that the Zekenim were Koneh with Agav, not only do they argue with Rav Papa and say that a Chatzer that is not guarded cannot be Koneh, but they also disagree with him and hold that anything which enters the Chatzer before the owner buys it cannot be acquired with Kinyan Chatzer for the new owner. That is why the objects which are piled there, "Tzevurim," can be acquired only with Kinyan Agav and not with Kinyan Chatzer (according to the side of the question that holds that "Tzevurim" is necessary).

The Acharonim question the Tosfos Chitzoniyos from another Gemara. The Gemara in Gitin (21a) teaches that a man can place a Get in the hands of his servant and then be Makneh the servant to his wife, and she becomes divorced through "Gitah v'Yadah Ba'in k'Echad." This Gemara clearly shows that the woman can acquire the Get even though it was in the Eved's hand before the Eved became hers. Apparently, Tosfos Chitzoniyos will explain that the Gemara there follows the opinion of Rav Papa and the opinion of our Gemara in its conclusion (that Agav does not require "Tzevurim"), and an object that is "Tzevurim" and resting in the Chatzer (or in the hands of the Eved) *can* be acquired through Chatzer and does not need a Kinyan of Agav.

(c) Even if Kinyan Agav works only when the Metaltelin are "Tzevurim," there is another difference between Kinyan Agav and Kinyan Chatzer. The RITVA and TOSFOS RID here (27a) write that when an object is transferred with Kinyan Agav, the land and what is in it are transferred simultaneously. However, when the recipient is Koneh the Metaltelin with Kinyan Chatzer, he must first acquire the Chatzer, and only afterwards is he Koneh the Metaltelin. (See CHASAM SOFER OC 117, DH Mah she'Kasuv Ma'alaso; see Insights to Gitin 77b.)

Accordingly, a practical difference between Kinyan Agav and Kinyan Chatzer would be as follows. Reuven sells Metaltelin to Shimon on the condition that Shimon should acquire it only at the moment that Levi makes a Kinyan on the land (that Reuven is selling to Levi) that is underneath the Metaltelin. Reuven then tells Levi that he wants Levi to make a Kinyan on the land and to acquire the Metaltelin that are on it (that is, the Metaltelin which he already sold to Shimon). If Levi is Koneh the Metaltelin with Kinyan Chatzer, then the Kinyan of Shimon will have preceded Levi's Kinyan, since Levi's Kinyan on the Metaltelin took effect at the same moment that Levi acquired the land, and Levi cannot acquire the Metaltelin with his Chatzer until the *next* moment. However, if Levi is Koneh the Metaltelin with Agav, then his Kinyan takes place at exactly the same time as Shimon's Kinyan and thus they would split the Metaltelin. Although this is a practical difference, it is obvious that this is not the reason why the Torah gives the Kinyan of Agav. Therefore, to answer our original question, why is Kinyan Agav necessary if Agav must be "Tzevurim" and thus Kinyan Chatzer should work, we must resort to one of the first two answers above.