Davar She-lo Ba La-olam

  • Rav Doniel Schreiber
Based on shiurim by Rav Doniel Schreiber
            The mishna in Kiddushin (62a), without formally declaring so, discusses two central principles in halakha: Devarim she-ba-lev einam devarim (unspecified stipulations are not valid) and davar she-lo ba la-olam (relating to items not yet in existence). The juxtaposition of these two ideas in the mishna is odd, but even more unusual is that our gemara completely ignores the concept of devarim she-ba-lev, and focuses its entire discussion on davar she-lo ba la-olam.
            Normally, in the halakhic system, we deal with things which presently exist in this world. We change the status of fruit when we separate teruma (priestly offering), establish a relationship with a woman through kiddushin, or transfer ownership by selling chattel and real estate. What about the possibility of effecting a change in status, relationship, or ownership, on something which has not yet been created - davar she-lo ba la-olam? This could include: separating teruma from cut produce upon produce that is still attached to the ground (which is not yet subject to teruma laws), a gentile betrothing a woman so that it will take effect after his conversion, and selling fruit which has not yet grown, or a field which I do not yet own.
            While our mishna apparently rules "ein adam makneh davar she-lo ba la-olam," i.e. one cannot sell that which is not actually in existence, the gemara cites a number of Tannaim who disagree and assert that "adam makneh davar she-lo ba la- olam," i.e. one can sell that which is not yet in existence. This shiur will discuss the rationale of the ruling - "ein adam makneh davar she-lo ba la-olam."
Mechusar Ma'aseh
            What is the reason behind the inability to effect a kinyan on something that is not yet in existence? R. Yochanan, in our gemara, limits this ruling to cases of "eino be-yado" (literally, not in his hand). However, in cases of "be-yado" (lit., in his hand), one can effect a kinyan, since "kol she'be-yado lav ke-mechusar ma'aseh dami," (lit., whatever is in his hand is not considered as lacking action). Evidently, the problem with davar she-lo ba la-olam is that is considered mechusar ma'aseh - lacking an action.
            What exactly does "mechusar ma'aseh" mean? The basic elements required to effect a kinyan (acquisition) are a ma'aseh kinyan, da'at koneh u-makneh, and a chalut. The term "ma'aseh kinyan" refers to a physical act which demonstrates the transfer of ownership, change in status, or relationship. Some examples include meshikha (pulling the object) and hagba'ah (lifting the item). "Da'at koneh u-makneh" refers to the wholehearted decision of both the buyer and seller to effect the transaction. Finally, "chalut," simply put, refers to the formal status conferred upon the completion of the transaction. How, then, does "mechusar ma'aseh" eliminate one or more of these critical components of kinyan?
            On a simple level, one might explain that mechusar ma'aseh refers to the lack of a ma'aseh kinyan, the rationale being that one cannot physically apply a ma'aseh kinyan to something not actually in front of you. Ma'aseh kinyanim address a physical entity, and in the case of davar she-lo ba la-olam the entity is not yet there. However, this might not be the problem with davar she-lo ba la-olam because halakha already has a way to deal with such cases. Kinyan Chalipin or agav (barter or inclusion) are often used to circumvent the need for a ma'aseh kinyan on objects which are difficult to acquire by a physical act of kinyan (see Tosafot Shantz in Shita Mekubezet to Bava Metzia 33b, and Chiddushim Ha- meyuchasin La-Ritva ad loc.). What then does mechusar ma'aseh mean?
            There are two possible approaches one can take in explaining "lack of action." The most appealing, textually, is that mechusar ma'aseh refers to control, i.e. one is not in absolute control of the situation (see the gemara above regarding 'in/not in his hand'). This might mean one of two things: 1) It is impossible to sustain the basic component of gemirut da'at (commitment) when one is not the master of a situation; or 2) Perhaps even if one has commitment, one cannot be considered a ba'al, an owner or possessor of title, over something not in one's control. Thus, although all the basic elements of kinyan are present, there is effectively no clear owner.
            A second approach would be that mechusar ma'aseh means that a davar she-lo ba la-olam is "out of touch," so to speak. There is no object that the kinyan can be chal upon, or apply to. Here, the emphasis is not on the mechanism of kinyan, nor on the lack of an individual to whom we can relate the kinyan. The problem of lo ba la-olam strikes to the core of kinyanim. The very stuff of kinyanim is missing - the chalut itself.
1. Semikhut Da'at
            Each of these problems in davar she-lo ba la'olam - lack of da'at, ba'alut, or chalut - is highlighted in different gemarot and Rishonim. For example, the gemara in Bava Metzia 16a explicitly refers to the lack of da'at as the cause for the failure of a kinyan be-davar she-lo ba la-olam. According to the gemara, a sale of stolen land is effective on the assumption that the robber will eventually purchase the land from the original owner. This seems to assume that one may sell a davar she-lo ba la-olam. On the other hand, the gemara also rules that a sale of fish that have not yet been caught is invalid, in accordance with the opinion one cannot sell a davar she-lo ba la-olam. In distinguishing between the two cases of selling davar she-lo ba la-olam the gemara answers: "Hakha samkha da'atei, ve-hakha lo samkha da'atei," in the case of the stolen field there was complete commitment, whereas in the case of the uncaught fish there was no semikhut da'at.
            The reason why semikhut da'at existed in the case of the stolen field was only due to external reasons - the seller (i.e. the robber) would surely acquire the field to sell so that the purchaser might not call him a robber. In the event, however, that these external considerations did not exist, as in the case of the uncaught fish, then kinyan be-davar she-lo ba la-olam would not work as there is no semikhut da'at. Indeed, Nemukei Yosef (Bava Metzia 37b in pages of Rif) asserts precisely this, that "since the fruit has not yet come into the world, the kinyan does not work, de-lo samkha da'atei."   
            This idea is further accented by the Tashbetz (#398). He questions what the halakha would be in a situation where it has become accepted in the market to sell devarim she-lo ba la-olam. (This is relevant nowadays, as it is common practice to sell futures.) The Tashbetz asserts that in such a scenario the kinyan is valid. One possible explanation of this pesak is that without the general acceptance of such practices, there is no semikhut da'at, commitment, when selling items which have not yet come into existence. However, once the norm is to buy and sell devarim she-lo ba la-olam, it is reasonable to assume different criteria in determining a commitment.
            Similarly, Tur, in his commentary on the Torah, asks how Esav could have sold his birthright which was a lo ba la-olam as their father, Yitzchak, was still alive. He answers that since Esav swore to uphold the sale, selling a davar she-lo ba la-olam was no longer a problem. Rema (C.M. 209) rules in accordance with this opinion, that taking an oath to fortify the sale of a davar she-lo ba la-olam legalizes the sale. The logical explanation for such a position is that an oath gives us the conviction that the transaction will occur, and thus both parties are willing to commit and have semikhut da'at.
2. Ba'alut
            An alternative flaw in kinyan be-davar she-lo ba la-olam is the lack of ba'alut, control or ownership. This is reflected in the gemara in Nedarim 85b which states: "It is proper that one may prohibit his neighbor's fruit to himself, since he can forbid his own fruit to his neighbor: but shall he forbid the non-existent to his neighbor, seeing that he cannot forbid his neighbor's fruit to his neighbor?!"          In this gemara, there is a clear correlation between lack
of ba'alut and davar she-lo ba la-olam. Indeed, the Ran (ibid.) emphasizes this point when he writes: "de-perot chavero (his friends fruit are like) ke-davar she-lo ba la- olam dami." (See also Tosafot, ibid.)
3. Chalut - Kalta Kinyano
            Finally, it is possible that davar she-lo ba la-olam causes problems in establishing a chalut. One may view this in one of two ways. Either inherently it is lo nitfas be-kinyan, i.e. a chalut kinyan is not applicable to it. Accordingly, this would exclude all possibility of kinyan. Alternatively, it might mean that only a particular form of kinyan, such as one involving a ma'aseh, cannot establish a chalut. However, a kinyan involving amira (a statement) alone would be effective.
            Many Achronim seem to embrace this latter approach in understanding the problem of chalut be-davar she-lo ba la- olam. For instance, the Noda BiYehuda (Mahadura tinyana, Even HaEzer 54:12), the Ketzot (332:6), and R. Shimon Shkop (Nedarim, #22), all point to the inability of the ma'aseh kinyan to relate to a davar she-lo ba la-olam as the cause for the failure in a chalut. This is rooted in a halakhic reality, peculiar to ma'aseh kinyan, called kalta kinyano.
            One of the basic prerequisites of a ma'aseh kinyan is that a residue of the ma'aseh must still exist at the time of the chalut kinyan. This is necessary so that the ma'aseh can apply to the object of the kinyan. If there is no vestige of the ma'aseh at the time of chalut, however, the kinyan is said to have terminated or expired, - "kalta kinyano." (See Choshen Mishpat 197:7, and Shakh ad loc.). Similarly, when the object of the kinyan is a davar she-lo ba la-olam, it is impossible for the ma'aseh kinyan to apply to an object that does not exist, and the kinyan expires. Thus, the chalut of a ma'aseh kinyan on a davar she-lo ba la-olam fails due to the same principle which invalidates a case of kalta kinyano.
            These Achronim claim, therefore, that a kinyan can be effective on a davar she-lo ba la-olam so long as it does not involve a ma'aseh. If there is no ma'aseh, there is no din of kalta kinyano. For instance, Rashba (cited in Ran, Nedarim 29a) posits that one can be makdish (dedicate to the Temple) objects le-achar sheloshim yom, i.e. the kedusha should be chal thirty days after the amira. He claims that this works, and does not encounter the problem of kalta kinyano, because hekdesh only involves an amira. Similarly, sekhirut po'alim (hiring workers) and hefker (making ownerless), whose basic components are amira and da'at, and not ma'aseh, do not possess the limitation of kalta kinyano, and thus would effect a chalut kinyan even on a davar she-lo ba la-olam.
            There is some evidence in the Rishonim which might support such conclusions. Rivash, for example, makes a striking comment. He asserts that prior to matan Torah one could be makneh a davar she-lo ba la-olam. This appears strange, for in what way was davar she-lo ba la-olam any better before matan Torah. One explanation might be that prior to matan Torah there was no concept of a ma'aseh kinyan - ma'aseh kinyan was introduced by the Torah - and kinyanim were accomplished through gemirut da'at alone. Thus, since there was no ma'aseh kinyan prior to matan Torah, there was similarly no limitation of kalta kinyano.
            Similarly, Yad Rama (Bava Batra 149a) rules that kinyan odita (kinyan through admittance, see Bava Batra, ad loc) - a kinyan through amira - works even for a davar she-lo ba la- olam.
Understanding Our Gemara
            Our gemara (Kiddushin 62a-b) discusses various cases which are considered "eino be-yado," such as a gentile attempting a kiddushin now to be chal at the conclusion of gerut, or kiddushin for a shifcha Kena'anit (gentile maidservant) to be chal only upon being freed, or kiddushin for one's own wife to be chal subsequent to the husband's divorcing her. One can consider each of the problems in davar she-lo ba la-olam - da'at, ba'alut, or chalut - for these cases.
            In all these instances it is possible that there is a lack of semikhut da'at. After all, in the case of the gentile, who is to say that he will find three judges to effect a conversion, or, in the case of the shifcha, how can one relate to such a far gone reality - the transformation from being a gentile to a Jew, or, in the case of kiddushin after divorce, who is to say that his wife will want to marry him again?
            Similarly, the lack of ba'alut could hamper the kinyan in these cases. In the case of the gentile, he is not in control of his own conversion, and in the case of marrying one's own wife after the divorce, he is not in control of her future desire to marry him again. In the instance of shifcha, one might argue that although the master can free his shifcha at will, the new person resulting in this transformation is so fundamentally different that the master is not considered to have ba'alut in effecting the kiddushin on the future free person.
            However, it is difficult to apply the failure of chalut to all these cases. For instance, in the case of gerut or kiddushin after divorce, the gemara cites the inability to control the situation as the reason for the kinyan's failure. This does not seem to work well with a failure in the chalut. Yet, the gemara's reasoning with regard to shifcha, that she has undergone a fundamental change, for the failure in kiddushin, might be interpreted as a failure in chalut. One might argue that although physically the woman is here, she is not "in this world" halakhically, and thus the ma'aseh kiddushin cannot relate to her. The gap, between being a free Jewess and being a shifcha, is so great, that she - the free "Jewess" - is "lo ba la-olam."
            Therefore, one may consider distinguishing between cases of gerut, kiddushin after divorce, and shifcha. Davar she-lo ba la-olam may fail for different reasons in each case. For instance, it is possible that the problem with gerut is lack of da'at, the failure in kiddushin after divorce is lack of ba'alut, and the inability to marry a shifcha due to a bereft chalut.
            To conclude, we have discussed various rationales for the failure of a kinyan on a davar she-lo ba la-olam. A kinyan on something not "in this world" could fail due to either a lack of commitment by either of the parties, or because of a deficiency in ba'alut, i.e. connection with the subject or item, or due to a failure in the chalut. Nonetheless, there is a minority opinion, as cited above, that subscribes to the idea that one can sell something not yet in existence. How this opinion may be justified is the subject of the next shiur.
Sources for Next Week's Shiur
Kiddushin 62a - the mishna and gemara until the first mishna on 63a; Tosafot and Rashba 63a s.v. Kegon De-katav; Ritva 63a s.v. Ve-hai De-ka'amar; Rashash 63a s.v. Le-hakhi Nakat.
1. While learning the sugya, pay attention to the various cases of "lo ba la-olam" - would it be logically tenable to validate the kinyan in some of the cases, but not all? Base your answer on what you know about the problem of "lo ba la- olam."
2. In Tosafot - pay attention to the shita of Ri (it appears in two parts: "le-khakh omer Ri" until "ve-haRam peiresh," and further on "u-mihu kasheh" at least until "ve-tzarikh le- dakdek"). What is the function of "me-akhshav"? Does this apply only to the case of davar she-lo ba la-olam, or is it halakhically relevant even according to those who disagree with R. Meir?
3. The Rashba quotes Ri, but his report contains an added element: an additional function of me-akhshav, which does not appear in Tosafot. What is it? (Rashba refers to the gemara in Yevamot 93a line 6 "De-amar Rav Nachman" until end of line 14.)