Chatzer as Yad
By Rav Moshe Taragin
Shiur #08: Chatzer as Yad
The gemara in Bava Metzia (9b-12a) describes the unique form of kinyan (acquisition) known as kinyan chatzer. Unlike most methods of kinyan, chatzer does not require any active participation of the owner. Anytime an item is placed into my property, my chatzer, (assuming certain basic conditions,) its ownership is transferred - even if I am unaware of the items placement into my chatzer.
The gemara elaborates on two independent mechanisms to explain the efficacy of kinyan chatzer. At a basic level, a chatzer can operate as an assumed shaliach, a messenger of the owner. Halakhah recognizes the ability of a shaliach to operate on behalf of another individual, to whom the completed activity will be attributed. Halakhah also recognizes a shaliachs ability to operate even without specific appointment. The rule of zachin le-adam she-lo bi-fanav allows a person to seize beneficial items on behalf of potential beneficiaries even without specific authorization. Taking these two concepts in unison yields the ability to view a persons chatzer as a default shaliach. In fact, Rashi (Bava Metzia 10b) is so convinced that a chatzer can act as an assumed shaliach that he claims that this is intuitive; no pasuk is required to teach this concept.
Yet the gemara provides not one, but two different sources to derive the concept of kinyan chatzer. One pasuk (Shemot 22:3) describes a ganav, a thief, who is found with a stolen item in his possession - im himatzei timatzei be-yado. The repetitive language of himatze timatze teaches us that a chatzer would be considered effective for kinyan; the thief is considered in possession of the item if it was found on his property. Alternatively, when the Torah describes the process of delivery of a get (Devarim 24:1), it instructs the husband to place the get in the hands of the woman ve-natan be-yada. This conjugation yields a derasha which validates a chatzer in receiving a get for a woman.
These pesukim potentially yield a mechanism of chatzer which is more powerful than mere shelichut, which, according to Rashi, would not even require a pasuk as its source. The gemara acknowledges that chatzer also works as a yad, literally the hand of a person. Although the gemara is unclear about this capacity of a yad, one thing is for certain: a chatzer as yad may accomplish certain kinyanim which a chatzer as shaliach can not. For example, a chatzer as shaliach would only operate in the owners absence for pure beneficial transactions (zachin). If the process were injurious to the owner, the chatzer as shaliach could not operate. An un-appointed shaliach cannot represent the owner in a damaging fashion. If a woman were not present, for example, her chatzer could not serve as a shaliach to receive her get, as this is disadvantageous to her. However, if her chatzer acts as a yad (given certain conditions), it could even receive her get or represent her in other damaging transactions. (See Bava Metzia 12a for a discussion of this discrepancy between chatzer as yad and chatzer as shaliach.)
The precise meaning of chatzer as yad is left unclear by the gemara. Are we to take the word literally, that a persons chatzer can act as an extension of his hand, as if everything contained in the chatzer is considered as if it were clutched in his hand? Or perhaps the word yad DOES NOT CONNOTE an actual extension of a HAND. Rather, the gemara merely employs the term yad to convey an apparatus stronger-than-shelichut." A chatzer can affect a kinyan on behalf of its owner in a manner which surpasses the limitations of shelichut; to convey this, the gemara refers to a chatzer as a yad.
This question may have formed the basis for an interesting machloket Amoraim between Ulla and R. Oshiya cited by the gemara in Gittin (77b).. The former only allowed chatzer to operate as yad if the owner was adjacent to the chatzer. Ulla reasoned that a chatzer can only MIMIC a yad if it resembles an actual hand. He probably understood the gemaras definition of the yad capabilities of chatzer literally. R. Oshiya, on the other hand, explained that a chatzer must only protect the item (mishtameret) in order to be considered yad-like. It is possible that according to R. Oshiya, the likeness to yad is not literal. A chatzer is an independently operating kinyan; if a persons zone contains items, the ownership of those items can be transferred by that very situation. As long as the chatzer protects the items, it can reasonably be considered a yad.
This issue may have also divided the Rishonim in their explanations of an intriguing case of chatzer which is not effective. The gemara in Bava Metzia (9b) and Gittin (21a) disqualifies a chatzer mehalechet, a mobile chatzer. A person cannot deploy his animal or slave as his chatzer and thereby acquire items placed upon them because they are not stationary. The gemara is unclear as to why a chatzer mehalechet is disqualified from enabling kinyan.
The Ramban attributes the problem to a different and well-known issue, that of chatzer einah mishtameret a chatzer which does not protect the item and therefore cannot acquire the item. The absence of any explicit logic to account for a mobile chatzers failure at kinyan convinced the Ramban that this is a derivative of a different issue and not a new chatzer concern.
Tosafot disagree with the Rambans correlation of chatzer mehalechet and chatzer einah mishtameret. First, if the entire concern were einah mishtameret, why refer to it as an independent category? A mobile chatzer should be disqualified as an example of einah mishtameret, not a chatzer mehalechet. The application of a separate phraseology suggests an independent reason for its disqualification. Second, the gemara provides exceptions to the rule, cases of chatzer mehalechet which do succeed in enabling kinyan. For example, the gemara considers a boat to be a chatzer because the water is moving and the boat is being drawn along. Since the boat does not possess independent movement, it is not disqualified as chatzer mehalechet. If the Ramban were correct and chatzer mehalechet is flawed because it does not protect the item adequately, we should be indifferent to the source of the movement. As long as the boat moves, the item is unprotected and no kinyan chatzer should be operative. Apparently, there is a different reason that a chatzer mehalechet is disqualified.
Tosafot suggests that a chatzer mehalechet does not resemble a yad, which doesnt move. Since every chatzer must be patterned on a hand, a chatzer cannot possess inherent movement. Conferred movement does not disqualify the hand association because a hand also moves at the behest of the body. It is only independent movement that subverts the hand-chatzer association, not secondary or conferred movement. It is clear that Tosafot take the yad association with chatzer more literally than the Ramban. Tosafot are willing to disqualify an independently mobile chatzer as well as validate a chatzer with conferred mobility solely based upon the degree to which the mobile chatzer deviates or adheres to the model of a human hand.
A similar debate between Tosafot and the Ramban emerges from an interesting discussion regarding a chatzer owned by hekdesh. Would a chatzer enable a kinyan for hekdesh? The Ramban in his comments to Bava Batra (79a) claims that it would. There seems to be little reason that a hekdesh chatzer should not enable a kinyan for hekdesh. But Tosafot (Bava Batra 79a) claim that a chatzer of hekdesh can not trigger a kinyan because there is no person representing hekdesh. Thus, hekdesh does not have a "yad," a hand to serve as a template for chatzer as yad. Again, Tosfaot appear to read the chatzer/yad association literally, disqualifying a chatzer if it cannot be patterned upon a human hand. The Ramban reads chatzer as yad far less literally, allowing a hekdesh chatzer to operate for kinyan and refusing to disqualify a mobile chatzer simply because it does not match a human hand.