Kinyan Meshikha Regarding Animals
Translated by David Silverberg
Dedicated in memory of Matt Eisenfeld z"l and Sara Duker z"l on their 20th yahrzeit.
Though their lives were tragically cut short in the bombing of Bus 18 in Jerusalem, their memory continues to inspire.
Am Yisrael would have benefitted so much from their contributions.Yehi zikhram barukh. –
Yael and Reuven Ziegler
Sources for the 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-behema… hakhi 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.
1. Pulling a Donkey and Guiding a Camel
The Gemara in Masekhet Bava Metzia (9a) records Rabbi Yehuda's comment, "In truth, one does not establish ownership unless there is meshikha [pulling] – when acquiring a camel – or hanhaga [driving, or leading] – when acquiring a donkey." Thus, one formally takes possession of a camel through meshikha, by pulling it from the front, and of a donkey through hanhaga – by guiding it from behind. The underlying principle is that kinyan meshikha by which one takes legal possession over an animal, should be performed in the manner which is most customary.
We find different views among the Rishonim regarding a case of "lav orchei" – when one tries taking possession of a camel, for example, through hanhaga. Rashi and Tosefot maintain that since he deviated from the customary method of kinyan, the kinyan act is invalid. The Rambam, however, writes (Hilkhot Aveida 17:5) that the kinyan act is valid in such a case. The Gemara which invalidates hanhaga for a camel, refers to a situation of two people who attempt to take possession of a lost camel, one through meshikha and the other through hanhaga. Since the one who pulls the camel has employed the more common method, his kinyan act supersedes his fellow's. Thirdly, according to the Rashba, non-conventional meshikha is problematic only with regard to the meshikha of animals, since in reality the animal walks by itself. However, if one binds the animal's legs and drags the animal, this meshikha is effective for kinyan, even though this is uncommon.
This shiur will focus on a fourth position. Rav Hai Gaon, in his Sefer Mekach U-memkar (Sha'ar 13), draws a distinction in this regard between transactions, where the buyer does establish ownership even in a manner of "lav orchei," and acquiring a lost animal, in which case a "lav orchei" act of kinyan is ineffective. This distinction requires explanation. If a "lav orchei" act does not qualify as an act of kinyan with regard to lost animals, why should it suffice in cases of transaction?
In order to explain the position of Rav Hai Gaon, we might suggest that a kinyan act effectuates ownership in one of two ways. First, by performing a certain act, the possessor creates a relationship of ownership over the object, and by demonstrating this relationship, he establishes his ownership. Alternatively, through the kinyan act the possessor establishes practical control over the object and the ability to use it as he wishes. This state of practical control establishes ownership over the item.
According to Rav Hai Gaon, the problem of "lav orchei" arises only regarding the first method, when the possessor must demonstrate ownership over the item. Thus, for example, if he pulls a donkey that he wishes to possess, he has not presented himself as the animal's owner, since he did act in the customary manner. This act, therefore, is meaningless. If, however, a person seeks to take possession due to actual control over the item, the specific manner of asserting control is of no consequence. Even if the act does not outwardly demonstrate ownership, so long as it is an act of practical control over the object, it is effective, regardless of whether or not this control corresponds to conventional behavior.
Furthermore, Rav Hai Gaon maintains that one acquires of a metzia only by performing a demonstrative act of ownership; establishing control over the item does not achieve kinyan. When a person comes across an ownerless item, he must first create the ownership towards the item and bring the item into the realm of ownership. As this entails changing the basic status of the item, a demonstrative act of ownership is required. In a transaction, by contrast, the buyer does not create ownership, but rather transfers his predecessor's ownership onto himself. A status of ownership already exists with respect to this item, and thus it undergoes no change over the course of the transaction. Rather, the ownership and the privileges associated with it are transferred to the buyer through his taking control over the object. Therefore, when it comes to taking possession of a metzia, the possessor must perform a kinyan act in accordance with the standard method of using the object. When making a purchase, however, it suffices to perform an act of control to demonstrate that the ownership and privileges over the object have now transferred to the buyer. The "lav orchei" disqualification thus applies only in a situation of metzia, where the kinyan act necessitates a demonstrative act of ownership.
Why do Rashi and Tosefot disqualify "lav orchei" in all situations, including transactions? They perhaps felt that kinyan always requires a demonstrative act of ownership, and no other method of kinyan exists at all. Even when the possessor does not need to create a status of ownership over the object, establishing his status as owner requires a demonstrative act of ownership, which must be performed in accordance with the standard manner of use. Alternatively, this position, like that of Rav Hai Gaon, recognizes both forms of kinyan, only they insist upon the standard method of use even in the second type of kinyan act, when one establishes practical control. Tosefot would perhaps argue that the act must have an appearance of control, beyond the practical assertion of control. One might suggest yet another approach, namely, that a "lav orchei" act of kinyan is ineffective simply because the possessor had the option of performing an act of standard use. The laws of kinyanim perhaps require employing the most appropriate method of use for the given object. Thus, for example, where one has the option of possessing an item through hagbaha (lifting), meshikha is ineffective. (Conversely, some Rishonim hold that regarding items generally transported by meshikha, one cannot take possession through hagbaha.)
2. Acquiring an Animal by Riding (8b)
The gemara (8b) questions whether one who rides on an animal acquires it, even though he sat passively on the animal's back and did not direct it to move. Tosefot and most other Rishonim maintain that we are discussing a case where the animal moved, therefore riding an animal classifies as a form of meshikha, as the animal walks in response to the weight upon it. It appears from Rashi's comments (8a s.v. derakhav kani), however, that the discussion in the Gemara refers to "riding" even if the animal does not move at all. This is also the view of the Rivash. This position, however, requires explanation. How can "riding" qualify as an act of kinyan, if the animal does not even move? The Meiri writes that according to the view that riding alone qualifies as a kinyan, this applies only to metzia; when it comes to purchasing an animal, however, one takes possession only through meshikha or mesira (harnessing). This distinction fits well with the simple reading of the mishna in the first chapter of Kiddushin (25b). This also appears to be the position of the Rambam, who writes:
"A lost animal that was found – if someone went ahead and took hold of its reins, he does not acquire until he pulls or drives it… If one was riding it and the other was holding onto its reins, the rider acquires the animal and only the harness on the animal's jaw, whereas the one who held onto the reins acquired the part of the reins that he held in his hand. The rest of the reins is acquired by neither." (Hilkhot Aveida 17:6-7)
When discussing acquisition by riding, the Rambam does not speak of the animal walking. In fact, he appears to continue to discuss a situation similar to the first case, when one merely took hold of the reins, where the animal clearly remains stationary.
By contrast, in the context of transactions (Hilkhot Mekhira 2:6), he writes, "… or if he rode on it and it walked … " Similarly, he writes later in halakha 10, "he takes possession by riding – so long as it walked with him." Thus, in the Rambam's view, only when acquiring a metzia does one take possession by riding even if the animal does not move; when purchasing an animal, one takes ownership by riding only if it moves. The explanation would seem to be that merely sitting on the animal without it moving constitutes an act of ownership. According to the Rambam, performing such an act is effective only when taking possession of a metzia. (Similarly, in Hilkhot To'en Ve-nit'an (9:7) the Rambam does not mention the animal moving when discussing muchzak). When purchasing, however, an act of ownership does not suffice; a demonstration of the animal's transfer from one person's ownership to the other's is required. After all, a status of ownership over the animal already exists. The act must therefore reflect the animal's transfer of ownership from seller to buyer, and this is performed through meshikha. Naturally, then, one takes possession by riding the animal only if the animal moves – which renders this act akin to meshikha.
On 9a, the Gemara attempts to prove that riding an animal effects kinyan from Rabbi Eliezer's ruling that "If one rides in a field or drives in the city – he takes possession." The Gemara then refutes this proof by claiming that "riding" in this case actually refers to a case where the rider kicked the animal causing it to move. Then the Gemara asks, "If so, then why does one not acquire by riding in the city?" Rav Kahana answers that people do not customarily ride animals in the city, and thus one cannot achieve kinyan in this fashion. Interestingly, the Gemara appears troubled by Rabbi Eliezer's ruling that riding is in effective in the city only once it defined "riding" as kicking the animal. Had Rabbi Eliezer referred to passive riding, it seems, the Gemara would not have questioned why it does not establish kinyan in a city. The Shita Mekubetzet cites the Rivash who explains in accordance with his position, that "riding" includes sitting on the animal without moving. Such an act, the Rivash writes, is effective only "because he uses it in the manner in which a person normally uses animals, similar to chazaka. One therefore does not acquire [in this manner] in a city, for people do not normally sit on top of animals in the city without moving." Indeed, the Gemara concludes that whereas one can take possession by riding if he kicks the animal in a city, one cannot achieve kinyan by passively riding it in a city – even if riding is effective in the countryside. The explanation seems to lie in the fact that riding, where one simply sits and performs no concrete action, constitutes an act of ownership, or of demonstrative ownership. It is not a formal act, but rather a means of using the animal as an owner would. To this the Rivash refers when he writes that riding "resembles chazaka." One takes possession of real estate through chazaka by acting towards the property as an owner. Chazaka means not formally bringing the land into one's possession, but rather acting as its owner. Needless to say, one who wishes to employ this method of kinyan must act towards the property (or, in this case, animal) in a manner in which owners of this particular property customarily act. Riding therefore differs from meshikha, which involves seizing control over the animal, and thus works even if one pulls the animal in an unusual manner.
According to the Rivash, if one kicked the animal causing it to move, he would acquire it even in the city. Apparently, riding in this fashion constitutes an act of control, which acquires even in an unusual manner. Moreover, it would appear that this type of riding is effective for metzia as well. This leads to the conclusion that the Rivash maintains that an act of control is effective for metzia and not only transactions (as opposed to the opinion of R. Hai Gaon). The explanation must be that even though an act of control does not in itself create a new ownership, this very state of being controlled by someone is itself the basis for establishing a state of ownership. Hence, even if the act was "lav orchei," since the state of ownership does not derive directly from the act of control, but rather is the result of one being in control, there is no problem of "lav orchei." A "lav orchei" act cannot directly establish ownership, but ownership can derive from a state of control that has been established by a "lav orchei" act.
The case of hanhaga of a camel, which is ineffective according to most Rishonim, poses a difficulty for the Rivash. Actual meshikha, with movement, should work, even in metzia, according to the Rivash even if "lav orchei," since it is an act of control. A possible answer might be that the Rivash distinguishes between physical possession of the animal, which is an optimal demonstration of control, and hanhaga, where the animal is not physically grasped by the acquirer. Lacking a physical possession, hanhaga cannot suffice as an act of control. This would be the explanation of the gemara's claim (8b) of superiority of "rochev" (which is a valid control): "rochev is superior, since he is grasping (tofes) it." Given what we wrote in the previous paragraph, it is possible that this is true only in metzia, where the act of control has to create, eventually, ownership as well. Possession is the basic element of ownership; hence control without possession cannot be the basis for the creation of ownership.
Another possibility is to distinguish between the "lav orchei" of a camel and the "lav orchei" of riding in the city. Hanhaga is not a proper act of meshikha for a camel. Riding is an appropriate meshikha for an animal, but is "lav orchei" only because of the locale. Therefore, if we were applying a pure act of ownership (stationary riding), "lav orchei" would invalidate it; however, an act of control ("manhig be-raglav") is effective. Hanhaga of a camel, however, does not only lack a demonstration of ownership. Since a camel is never moved in this manner, this act is not valid even as an act of control. Meshikha is not an actual state of control, but a DEMONSTRATION, a symbolic act of control. An action which is inappropriate in principle cannot be a symbolic demonstration of control or possession, even if it effectually moves the animal. Riding an animal, even if not normally done within the city confines, is nonetheless an appropriate symbol of control (though not of ownership), since this is a normal way to control the animal.
Sources for next week's shiur:
1) Bava Metzia 10a "Rav Nachman ve-R. Yitzchak" ... Mishna.
Rashi s.v. Havei; s.v. Chav; s.v. Lo kana.
Tosafot s.v. Tofes.
2) Beitza 39a Mishna, Gemara "Itmar ... ha-memaleh."
3) Beitza 39b "Ela hakha be-magbiha ... lo kana."
Tosafot Bava Metzia 10a s.v. Rav Nachman. "Ve-Rabeinu Tam piresh ... be-bor."
Ramban Bava Metzia 10a "Amar R. Chiya."