Bava Metzia 8a: Lifting a Metzia Together

  • Rav Yair Kahn

 

Sources for the shiur:

  1. 8a: "Amar Rami Bar Chama… ana akni."
  2. 10a: "Rav Nachman ve-Rav Chisda… zakeih li."
  3. Chiddushim Ha-meyuchasim le-Ritva, s.v. amar Rami Bar Chama; Chiddushei Ha-Ran, s.v. ela lav.
  4. Rashba, s.v. ha de-amar; Tosefot Ha-Rosh, s.v. ta'aseh (appears in Shita Mekubetzet).

Questions:

  1. Explain the debate between Rashi and Tosefot as to the meaning of "shutefin she-ganvu."
  2. What is the difference between our sugya and the sugya on daf 10, according to the view cited in the Chiddushim Ha-meyuchasim Le-Ritva?  Does Rashi agree with this position?
  3. Explain the debate between the Ra'avad and the Rosh.

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1. Stealing Together

            The Mishna indicates that when two people lift a metzia together, each person acquires half of the object. Rami Bar Chama tried to prove from this that one can establish ownership over an object for another person:

"Rami Bar Chama said: This indicates that if one lifts a metzia [lost item which is now ownersless] on behalf of his fellow, his fellow acquires [the metzia].  For if you would think his fellow does not acquire, this [the metzia discussed in our mishna, which two people jointly retrieve] should be considered as if this [half] lies on the ground and this half lies on the ground, such that neither acquires [even the half that he holds].  Thus, we may derive from here that if one lifts a metzia on behalf his fellow, his fellow acquires. 

Rava offered an alternate explanation for the Mishna, thereby undermining Rami Bar Chama's proof:

Rava said: In truth, I might argue that if one lifts a metzia on behalf of his fellow, his fellow does not acquire, and here the reason is that since he acquires [one half] for himself, he acquires as well [the other half] on behalf of his fellow."

            Rava draws proof for his position, that acquiring for oneself enables him to acquire on behalf of another, from the halakha of "shutefim she-ganvu":

"After all, had he said to his agent, 'Go and steal for me,' and he went and stole, he [the dispatcher] is exempt, whereas partners who stole are liable.  Why is this the case?  Surely because we say that since he acquires for himself, he acquires as well on behalf of his fellow."

Rashi explains that Rava refers to a situation where one partner steals the item from the owner's property with the intention of taking joint possession over the item with another.  Most Rishonim, however, rejected this interpretation, for we cannot possibly hold the partner, who took no active role in stealing the object, accountable for the thief's crime.  This is no different, they argue, from a theft perpetrated through a shaliach (messenger, or agent), in which case we do not hold the dispatcher liable, in light of the principle, "The command of the Master and the command of the disciple – whose command should one heed?"  (Meaning, the messenger is held accountable for his criminal act, for he should have obeyed God's admonition against stealing rather than obey the dispatcher's command.)  Other Rishonim therefore explain the case of "partners who steal" differently, as referring to two partners who seize the item together, a situation that closely parallels the case addressed in our sugya. 

One might resolve the difficulty posed against Rashi's understanding by distinguishing between shelichut (dispatching a messenger) and shutefut (a partnership), and claim that the rule absolving one from culpability for a crime committed at his bidding applies strictly to the realm of shelichut when one acts on behalf of another, and not regarding partnerships when two partners act together.  This explanation assumes a specific understanding of shutefut.  In addition, one must determine how a partnership to steal is established. 

In any event, according to Rashi, Rava argued that when two people lift a metzia in unison, since neither can acquire any part of the object independently, we can consider them as shutafim who lift the metzia jointly.  Accordingly, the ruling of the Mishna indicates nothing regarding one who lifts a metzia for another.

Still, however, Rashi's approach requires explanation.  Why did he not adopt the straightforward reading of the sugya?  The entire sugya deals with two people who take hold of an item simultaneously, and so this should seemingly be the scenario addressed by Rava.  Why does Rashi opt against this straightforward reading?

2. This indicates that if one lifts a metzia on behalf of his fellow his fellow acquires

            Before we try to explain Rashi's position regarding "shutefim she-ganvu," let us return to the comments of Rami Bar Chama, who derives from our mishna that one can retrieve a metzia with the intent that someone else should thereby acquire it.  It would seem that he makes this comment on the basis of a different sugya (10a), which records a debate among the Amoraim regarding this very issue.  According to the Gemara there, the one who holds that this is ineffective equates this case with a situation of one who seizes property of a debtor on behalf of the latter's creditors.  The commentators offer different explanations for this case of seizing the property of a debtor, and we will not deal with this debate in this context.

            For our purposes, it suffices to note that the sugya there deals with a person who retrieves a metzia on behalf of his fellow, whereas our sugya discusses a case of two people who lift a metzia simultaneously, each one for himself.  Rami Bar Chama claims that if not for the law allowing acquisition of a metzia through the retrieval of another, neither of the two people who simultaneously lift a metzia would acquire ownership over their respective halves.  Since each seized only half, and the other half is considered as still lying on the ground, neither acquires his half.  Rava, who disputes Rami Bar Chama's reasoning, agrees with Rami Bar Chama in principle.  Rava simply contends that we can overcome this problem through the principle of "migu de-zakhi le-nafshei" (as one acquires for himself, he may by extension acquire on behalf of another), regardless of whether generally one can acquire a metzia through the kinyan of another.

            Rashi indeed combines the two sugyot, and explains Rava's response to Rami Bar Chama as follows: "And the reason is stated later (10a), that this is tantamount to seizing [property] from a debtor… ".  Similarly, Rashi explains Rami Bar Chama's position, that our mishna must hold that seizing a metzia can achieve ownership on behalf of another, to mean that in our mishna, each party lifts his half with the specific intent that the other should take possession of the other half – just as in the sugya on 10a.  The Chiddushim Ha-meyuchasim Le-Ritva, however, distinguishes between the case in our sugya and the discussion of lifting a metzia on behalf of another:

"Since he lifted it in order to acquire it, his lifting is effective even with respect to his fellow.  And although he does not intend to lift it on behalf of his fellow, as in the case of lifting a metzia on behalf of one's fellow, but rather [he intends only to acquire] for himself, we do not claim that that these two are identical.  They are clearly not the same, for one who lifts a metzia on behalf of his fellow intends to lift it for his fellow to acquire it, as opposed to this case."

According to this position, the sugya on 10a deals with one who intends to retrieve the metzia for another; he must have specific intention that the other acquires ownership through his kinyan of the item.  In our sugya, however, which discusses a case of simultaneous lifting, it suffices for each party to intend to lift the item to take personal possession.  The Chiddushei Ha-Ran (s.v. ela lav) similarly writes that according to Rava, who holds that the simultaneous lifters achieve ownership through the principle of "migu de-zakhi le-nafshei," this applies even if each lifts the item for himself, without any intention for the other party to take possession.  Thus, there are Rishonim who distinguish between our sugya and the sugya on 10a, but this distinction requires clarification. In order to understand this position, let us examine an additional issue.

3. It is as if half were lying on the ground

            The Rashba and Ra'avad debate a different point in our sugya.  The Rashba writes:

"The Ra'avad z"l explained that [this applies] only if he did not lift it enough for it to be raised above the ground.  But if he lifted it enough for it to be raised above the ground, they both acquire it independently, because it is not considered lying on the ground, and each acquires through his lifting.  This does not seem correct to me … for since if one lifts a metzia on behalf of his fellow his fellow does not acquire [since] his fellow's hand is, with respect to himself, equivalent to the ground."

According to the Ra'avad, we consider the garment as lying on the ground only if it is long enough such that without the second party holding it, it would remain partially on the ground.  The Rashba argues and maintains that if we maintain that lifting a metzia cannot achieve ownership on behalf of another, the second party's hold on the garment is itself tantamount to its lying on the ground.  The Tosefot Ha-Rosh adds that we equate the second person's hold on the garment with its lying on the ground because he intends to take ownership over it:

"It stands to reason that the hold of each party precludes the acquisition of the other because the hold of his fellow does not help him at all.  And we do not say that we should consider it with respect to his fellow's acquisition of his half as if he simply let it fall, and behold it is lifted above the ground, for to the contrary, he wishes to acquire his half by holding onto it.  Thus his hold is considered as if it lies on the ground with respect to his fellow."

            According to the Ra'avad, the sugya refers to a case where both lifted a garment, but neither lifted it sufficiently for it to entirely leave the ground.  In his view, the problem lies in the act of kinyan (acquisition).  Neither party independently performed a complete act of hagbaha (kinyan through lifting), and thus if we do not consider the act of the second party, no act of lifting has occurred at all.  Once, however, we accept the principle of "magbiha metzia le-chaveiro," we can view the two parties as combining to perform a single hagbaha, since together they indeed succeed in lifting the garment off the ground.  The Rashba disagrees with the Ra'avad because in his view, even if one of the two parties lifted the garment enough to independently remove it from the ground, we would still consider the garment as lying on the ground, since it is being held by the competing party.  We might explain that even according to the Rashba, the problem lies in the deficient kinyan act, however the Rashba argues with the Ra'avad regarding the definition of a valid act of hagbaha.  According to the Ra'avad, it suffices to lift the item off the ground; the fact that someone else also holds onto the object does not undermine the validity of the act of hagbaha.  The Rashba disagrees on this very point.  He perhaps felt that a proper act of hagbaha entails not simply the object's physical detachment from the ground, but an act demonstrating its entry into the lifter's possession.  Therefore, so long as the second party also retains his hold on the item, no act of hagbaha has occurred, and we consider the object as if its remains lying on the ground.

            According to the Rashba, partial possession of second party undermines hagbaha irrespective of the intention of the second party.  From the Rosh's comments, however, it is clear that we equate the second party's hold on the garment with its lying on the ground only because he seeks to take possession.  Perhaps, he agrees that the problem is regarding the act of hagbaha, but considers partial possession of another party problematic only if that party intends to acquire the object for himself. Alternately, we might suggest that the Rosh viewed the problem differently.  He maintains that the inability to take possession in this case stems not from any deficiency regarding the act of kinyan, but rather with the effect of kinyan ("chalot kinyan").  As far as the hagbaha is concerned, each performs a satisfactory act of lifting.  But unless we accept the position that one can acquire a metzia through the hagbaha of another, this act cannot effectuate a kinyan since the garment is lifted also by somebody else, who himself wishes to take possession.  These two acts of lifting create a conflict with regard to the kinyan's effect, thus preventing any kinyan from occurring.  Accordingly, the gemara's claim that the garment should be considered as if lying on the ground, is not meant literally.  Rather, it is similar to a garment lying on the ground since the kinyan cannot take effect because each party attempts to take the garment only for himself.

            It should be noted that even in the standard case of "magbiha metzia le-chaveiro" (10a), when one lifts the item on his fellow's behalf, the problem is not in the act of lifting, but rather in the "chalot" of the kinyan.  After all, the person who lifts the metzia performs a perfectly valid act of hagbaha; had he lifted the item for himself, he would have indeed achieved possession.  But since he intended to lift the metzia on behalf of somebody else, his lifting cannot yield the effect of kinyan (at least with respect to the other person).  This would seem to lend support to the Rosh's position, that the discussion in our sugya surrounds the issue of the effect of kinyan, rather than the qualifications for a valid act of hagbaha.  Necessarily, then, the Ra'avad distinguishes between the sugya on 10a and the discussion in our sugya.  There (on 10a), the Gemara deals with someone who performs a perfectly valid hagbaha on behalf of his fellow, and the Gemara questions the effect of a kinyan in such a case.  Our sugya addresses a situation of two people who simultaneously lift a metzia, each intending to take possession of his half.  Here the question involves the act of hagbaha for each lifter.  There is nothing deficient in the potential for the effect of kinyan, since no one here intends to acquire the object for his fellow; rather, each intends to personally take possession over half the garment.

            In light of what we have seen, we can resolve the difficulty we raised against the position cited in the Chiddushim Ha-meyuchasim La-Ritva.  We saw that according to this view, when two people lift a metzia, neither needs to lift with the intention that the other should acquire his half.  Yet, in the sugya on 10a, when one takes a metzia on behalf of another, he must, indeed, have in mind that he lifts the item specifically for the other person.  The question thus arose why this position draws a distinction between these two sugyot.  As we have seen, however, according to the Ra'avad, the deficiency in the case of the simultaneous lifting of the metzia relates only to the act of kinyan, and thus the halakha of magbiha metzia comes to resolve only this problem.  Aside from this, as we explained, there is nothing lacking in the possibility of the kinyan's effect.  In order to surmount the problem concerning the kinyan act, we need only to relate the kinyan act of the second party to – and combine it with – the act performed by the first, for the two of them together performed a perfectly valid act of hagbaha.  According to this view, intention is not necessary in order to combine the two acts of kinyan.  On 10a, however, where the Gemara discusses the problem of effectuating a kinyan when one lifts the metzia on behalf of his fellow, there is no question that intention is required on the part of the one lifting the item. 

Rashi, however, who compares the two sugyot disagrees with this position.  He maintains that even when two people simultaneously lift a metzia, the problem involves the effect – rather than validity of the act – of kinyan, just as in the discussion on 10a.  Rashi therefore combined the two sugyot and claimed that even when two people take the metzia, each must have in mind to lift the item also on behalf of the second party, who will acquire his half.

            If so, according to Rashi, the basic discussion of our sugya is with regard to one who intends to be koneh a metzia for another. Rami Bar Chama attempted to prove from the case of two that lift together, where the ruling is that each acquires half, that each person lifting for the sake of the other is effective. If so, one can lift a metzia alone for the sake of another as well. Rava deflected this proof. He countered that the position that one cannot be koneh for another is because one cannot act for the benefit of another, when it is at the expense of others. Therefore, this problem doesn't apply to the case of two who lift together. Since neither can be koneh independently, one lifts for the other, not for the sake of the other, but rather for his own benefit.  It is analogous to a case of two partners, where each party doesn't act exclusively for the benefit of his partner, but rather for his share in the partnership.

            Based on the above, we can return to Rashi's interpretation of two that steal. According to those that distinguish between our sugya and that on 10a, and interpret the problem of two who lift as a defect in the act of hagbaha, clearly the proof from partners that steal should be explained in a similar fashion i.e. two who stole together, where the defect is in the act of stealing. Rashi, on the other hand, merges the two sugyot. According to him, the problem in our sugya relates to the chalot kinyan, just as in the case on 10a. Accordingly, Rava brought the example of partners who steal in order to illustrate the distinction between one who acts for another, and a partner who acts for his share in the partnership. When one steals for another, only the one who actually stole is culpable, based on the rule "ein shaliach ledvar aveira" (there is no institution of shelichut regarding transgressions). However, regarding partners in crime, when one steals for the partnership, both are liable since the one who stole is not stealing for another, but for his own share in the partnership. (This explanation depends on how we explain "ein shaliach ledvar aveira". However this point goes beyond the parameters of this shiur.) Moreover, it is quite possible that this proof is specific to the case where one partner stole for the partnership. If, on the other hand, both had stolen the object together, the problem of "ein shaliach ledvar aveira" may not apply. 

 

Sources for the next shiur:

1. 8b, "shenayim she-hayu moshkhin… ve-ika de-amri hanhaga be-gamal," Rashi and Tosafot; Rambam, Hilkhot Aveida 17:5; Sefer Mekach u-Memkar, sha'ar 13, "u-le-olam meshikhat ha-behemahakhi hu darkhan lirkov"; Rashba 9b, s.v. ba'i R. Elazar.

2. Rashi 8a, s.v. de-rakhev kani; 8b, Tosafot, s.v. "rachuv adif"; Meiri, s.v. amar ha-Meiri, and s.v. zehu; Shittah Mekubetzet 8b in the name of Rivash; Rambam, Hilkhot Aveida 17:6-7; Hilkhot Mekhira 2:6, 10.