Kinyan Meshikha

  • Rav Moshe Taragin

 

            Halakha requires that transfer of objects from one possession to another be enacted by a process known as 'kinyan'.  Generally, this process includes two components - the common agreement of the two parties to consummate the deal - what is referred to as 'da'at' or 'gemirut da'at' - and some action which demonstrates in a graphic manner the transfer of the item in question - known as a ma'aseh kinyan.  Generally, this act is highly demonstrative - displaying the transfer of ownership which it establishes.  For example, an act of hagba'a - lifting a small item up in the air - clearly demonstrates that the person lifting is considered the new owner.  Alternatively, in the case of land acquisition, 'na'al gadar u'paratz' - fixing some fence or making some slight repair to the land - equally displays the newfound ownership.  There are, of course, exceptions to these rules - acts of kinyan which are formal and don't appear to reflect the halakhic change which it enables.  Most cases of ma'aseh kinyan, however, conform the above pattern in that they clearly exhibit the transfer of ownership.  This article will address, in specific, one particular ma'aseh kinyan known as kinyan meshikha.

 

            Kinyan meshikha is performed by pulling a large item (generally an animal or large boat/wagon) into the area which is owned by the purchaser (loke'ach).  This action is meant to symbolize the change in ownership which is occurring.  There are, however, TWO patterns or motifs which are latent within this action of meshikha.  Surely, the most vivid symbolism of the meshikha is the PHYSICAL TRANSFER of the item into the reshut of the loke'ach a vivid demonstration of new ownership evidenced by the new physical possession.  There is, however, a second dimension which meshikha demonstrates.  Aside from the ultimate effect of placing the item into the reshut ha-loke'ach, the meshikha enables the new ba'al to exert control over the animal by directing its movement and, in fact, leading it.  Exerting control over the animal might be an alternative way to define oneself as the new owner.  Meshikha presents itself as a multidimensional action.  On the one hand ,it transfers the item into the physical reshut of the new owner.  On the other hand it allows him to direct the animal, establishing himself as a ba'al - one who exerts ultimate control over the item in question.  Which of these two dimensions entails the essence of a kinyan meshikha - the hakhnassat reshut (transfer into my physical 'zone') or the shlita ( exertion of control)?

 

            The primary test for this question might be the case in which meshikha fails - the most famous case being meshikha in the reshut ha-rabim.  The gemara in Bava Batra (84b) establishes that meshikha is only effective if performed into the reshut ha-yachid of the new owner; in reshut ha-rabim meshikha is ineffective.  Would this not support the stance that meshikha focuses  upon the transfer of location into the new ba'al's reshut - hence when the animal or item remains within the reshut ha-rabim no such transfer occurs.  If, however, meshikha reflected the exertion of control what difference would it make if control was exerted solely in reshut ha-rabim and the animal did not end up in reshut ha-yachid?  What is important is not where the animal ends up but whether some controlling force determined its path!!!

 

            In truth, the Rashba in Bava Batra is already sensitive to this question.  In his comments (76a) he offers two reasons why meshikha would fail in reshut ha-rabim.  Indeed, he supplies the standard approach - since the animal has not been transferred to the physical reshut of the loke'ach.  He adds an additional reason:  In reshut ha-rabim the ebb and flow of people walking back and forth prevents a meshikha.  Evidently, this second reason addresses the issue of control.  In reshut ha-rabim proper control cannot be maintained over the animal because of the crowd.  At any given moment the lokeach and the animal might be separated by onrushing traffic or might be pushed in a different direction by the surging crowd.  Apparently, according to the Rashba, meshikha, even in terms of control is invalid in reshut ha-rabim not because of the halakhic status of the area but because of the reality that in such a mass of people, proper control and dominance cannot be maintained.

 

            The difference between these two reasons for meshikha's failure in reshut ha-rabim is not merely semantic.  If meshikha reflects physical transfer of the item, it fails in reshut ha-rabim because as long as the item remains in this area no transfer has actually occurred.  In a sense, no part of reshut ha-rabim would enable meshikha, since in no instance is the transfer completed.  If, however, meshikha's failure is due to the lack of control - which is a function of the generally crowded state of reshut ha-rabim, one can envision meshikha being effective in an UNCROWDED area of reshut ha-rabim.  The intrinsic formal status of reshut ha-rabim does not inhibit kinyan meshikha.  Rather, the incidental, probable mob which prevents proper domination cramps the lokeach's ability to perform a meshikha.  What would happen if we located an uncrowded type of reshut ha-rabim....

 

            The gemara in Ketubot (31b) addresses the case of tzidei reshut ha-rabim - the 'sidelines' of reshut ha-rabim.  This case refers to the area immediately adjacent to reshut ha-yachid which, although officially considered reshut ha-rabim, is not frequented by the public.  Generally, people avoid this area because the wheels of their carriages might scrape against the walls of the reshut ha-yachid.  With regard to Hilkhot Shabbat - hotza'a and hakhnassa - we encounter a machloket between R. Eliezer, who defines this area as reshut ha-rabim and Chachamim who regard it as reshut ha-yachid.  When it comes to kinyan meshikha, however, the gemara states that even R. Eliezer would admit that a valid meshikha is possible.  The probable explanation for this discrepancy - between Shabbat where this is considered reshut ha-rabim and kinyan where it is considered a reshut ha-yachid - harps back to our earlier comments.  The laws of hotza'a on Shabbat depend upon the formal definition of reshut ha-rabim.  R. Eliezer is of the opinion that these 'sidelines' are formally considered reshut ha-rabim.  When it comes to a possible kinyan meshikha, which is based on the exertion of control, what is important is not merely the formal status of the area, but the REALITY - will a crowd constrain the dominance of the ba'al or not.  Tzidei reshut ha-rabim, though formally reshut ha-rabim, is not frequented and enables proper performance of meshikha.  Here we have located a type of reshut ha-rabim in which control can be fully exerted.  If meshikha is valid, as the gemara asserts, even though it is reshut ha-rabim, we have proven that meshikha is an exhibition of control, which generally fails in reshut ha-rabim because of the inhibiting crowd.  Take away the crowd and meshikha would succeed!!!

 

SUMMARY:

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            We have suggested two views of kinyan meshikha.  In either case it demonstrates the new ownership of the lokeach.  It does so either by physically transferring the item into the area of the lokeach or by demonstrating this change by giving the lokeach the opportunity to exert control over the item.  In either instance it fails in reshut ha-rabim, the only question is: why and what would occur in an uncrowded reshut ha-rabim?

 

            If we intend to prove of fully elaborate this question - whether meshikha focuses upon the physical transfer or the exertion of control - we must locate cases where one quality exists and the other doesn't.  For example, what would happen in meshikha where control is being exerted but the animal is not brought into the reshut.  Conversely, what might happen if the animal ends up transferred into a different reshut without control having been exerted.  We will first consider the latter case.

 

            The Shulchan Arukh (196) discusses a case of meshikha when acquiring ownership of an eved kena'ani.  The S'ma in his comments suggests a form of meshikha whereby the previous master urges his eved to enter the reshut of the lokeach.  The Ketzot disputes this form of meshikha insisting that the lokeach must be the party responsible for meshikha either through his physical involvement or through his command.  This case seems to present an instance in which the item ends up in the reshut of the lokeach  without any control having been exerted on the part of the lokeach - the new owner!!  Would this not suggest a case of meshikha of hakhnassat reshut without meshikha of shlita (control).  The machloket between the S'ma and the Ketzot might reflect their differing views about the essence of meshikha (this assumes of course parity between meshikha upon inanimate items and meshikha upon eved kena'ani.).

 

            The mishna in Kiddushin (25b) discusses a variant kinyan known as kinyan messira - the transfer of the reigns from seller to buyer.  The mishna suggests that this kinyan is effective for large animals - behema gassa.  Rashi adds that for these animals standard meshikha would fail since "it is uncommon to pull these large animals in front of you".  If kinyan meshikha operates based upon a principle of physical transfer one might wonder at Rashi's rule.  Why should the 'normal method' of transport concern me as long as the animal ends up in the new reshut.  If, however, meshikha reflects the exertion of control, evidently, since it is uncustomary to drag these large animals, proper control has not been exerted.  Control might be defined as the normal conduct of be'alim over this animal.  A similar issue arises within the machloket between R. Yehuda and Rabanan on Bava Metzia (9a) regarding the method of meshikha for donkeys and camels.  According to R. Yehuda for meshikha to be effective a camel must be pulled while a donkey must be led; otherwise, the meshikha fails, since, normally donkeys are led while camels are pulled.  Rabanan are more lenient allowing either animal to be either led or pulled.  Evidently, R. Yehuda viewed meshikha as the attempt to dominate over the animal by exerting control and this must be performed in the appropriate manner for it to be meaningful at all.

 

            In terms of the converse case - dominance and control without actually transferring it into reshut - we have already witnessed one such case - meshikha in an uncrowded section of reshut ha-rabim (tzidei reshut ha-rabim) where control is feasible but not transfer into reshut.  The gemara in Bava Kama (52a) discusses the case of mashchuchit - acquiring a pack of animals by performing meshikha upon the lead animal - the animal which the entire pack follows.  The Bavli maintains that individual meshikha must still be performed upon each and every animal in the pack.  There is only a slight difference between this case and the standard one as follows: In general, permission of the mokher (seller) must be granted to fulfill a kinyan in the form of his saying or indicating "lekh chazek ve-kani" (proceed and make a kinyan).  In this case licensing a kinyan on the lead animal is equivalent to mandating a kinyan on all the animals.  In essence, then, we derive relatively little about the nature of the act of meshikha itself.  The Yerushalmi, however, (Bava Batra 3:1) cites this case and doesn't clarify whether an actual meshikha must be performed on every single animal.  Similar ambiguity arises out of the Rambam and the Shulchan Arukh (197:4) when they mention the case without specifying this issue.  Is it possible that pulling the mashchuchit projects a kinyan on the rest of the pack?  Even though the rest of the pack has yet to enter the new reshut they have been dominated over by the exertion of control over their leader!!!

 

            A second instance relates to the machloket between Rav and Shmuel in Bava Batra (75b) regarding the degree to which the animal has been pulled.  What would the halakha be in a case where a partial meshikha was performed so that only part of the animal has now been brought across the line into the area of the lokeach.  Rav validates this kinyan while Shmuel disqualifies it.  In terms of hakhnassat reshut the entire animal has not been brought in and hence the entire animal is not yet his.  However, the ENTIRE animal has moved from its original position and the entire animal has been controlled.  Rav and Shmuel themselves, given their differing stances about meshikha might have been disputing this case where hakhnassat reshut is incomplete but shlita (control) is entire.

 

SUMMARY:

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            We have located two categories of cases (nafka minot) to help examine this issue.  One set details instances where the animal has been transferred but no control has been exerted.  Alternatively, we have questioned cases where dominance has been asserted but the animal remains in the reshut ha-rabim.

 

Methodological Points:

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1)  To define a rule investigate its exception - i.e. where it fails.  To fully understand meshikha inspect the case where it does not operate - reshut ha-rabim - and this will shed light upon meshikha in general.  What is the difference between the rule and the exception - what is the principle force behind the halakha?

 

2)  To assist in this inquiry, seek an exception to the exception.  Is there a reshut ha-rabim in which meshikha does work?  Understanding the relationship between the rule, its exception, and the exception to the exception can be very useful in analyzing the halakha itself.

 

3)  To return to earlier points - to prove whether something is x or y, locate two types of cases: x without y, and y without x.  In our case we looked for cases of hakhnassat reshut without shlita and conversely shlita without hakhnassat reshut.

 

4)  A further step which I didn't address in the article: Could it be that sometimes meshikha operates as a physical transfer while in other cases as the exertion of control?  How might one distinguish between meshikha upon utensils and meshikha upon animals?  See the Tosafot Ri"d in Bava Metzia (9a) dibbur ha-matchil ve-i bi-reshut and the Rosh in Bava Batra (5:1.

 

Shabbat Shalom, Moshe Taragin

 

 

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