"Kinyan Peirot Ke-kinyan Ha-guf Dami" (88a-88B)

  • Rav Shmuel Shimoni

 

            Our passage opens a discussion that veers from the usual subject matter of chapter Ha-Chovel and relates to fundamental issues in the realm of ownership. Today we shall deal with the question whether kinyan peirot, i.e., the right to usufruct - the right to use and enjoy the profits and advantages of something belonging to another person – is considered akin to "kinyan ha-guf," full-fledged ownership over the property. We shall deal with the application of this issue in our passage with respect to the question whether a person enjoying kinyan ha-guf, but not kinyan peirot, can sell what he owns to another person, and with respect to the enactment instituted in Usha relating to the matter.

 

 

I. The disagreement between Rabbi Yochanan and REsh Lakish – General Background

 

            The Amoraim disagree about the status of kinyan peirot. According to Rabbi Yochanan ke-kinyan ha-guf dami (it is like kinyan ha-guf), while according to Resh Lakish lav ke-kinyan ha-guf dami (it is not like kinyan ha-guf).  [Note: In an exceptional manner, the Halakha here follows Resh Lakish.] The Gemara in Bava Batra 136b discusses two contexts in which these Amoraim disagree about this issue. The first is that which is discussed in our passage regarding the question whether a person enjoying kinyan ha-guf, but not kinyan peirot, can sell what he owns to another person; we shall deal with this below. The second relates to an entirely different matter: "If a person sells his field for its fruit, Rabbi Yochanan said: [The buyer] must bring [the bikkurim] and recite [the declaration]. Resh Lakish said: He must bring but does not recite. Rabbi Yochanan said [that] he must bring and recite because he holds that kinyan peirot ke-kinyan ha-guf dami, whereas Resh Lakish said [that] he must bring but not recite [because in his opinion] kinyan peirot lav ke-kinyan ha-guf dami."

 

            In this section I will try to present what I believe is the simple understanding of this basic disagreement. Later in the shiur we will deal with the application of this matter in our passage regarding the question whether the person enjoying kinyan ha-guf can sell what he owns, and we will see that our suggested understanding is not universally accepted.

 

            It would seem that according to the simple understanding, there is agreement about the basic facts: We are dealing with a case where one person owns the property, while a second person also owns the property, but only for its fruit. All agree that Halakha recognizes such ownership, that is to say, ownership for purpose X, and in this case, for the fruit. I wish to illustrate this with the words of the Rambam. The Rambam rules that one cannot sell something that has not yet come into existence, and therefore: "When a person sells the fruit of a date palm to another person, he may retract even after the fruits of the date palm have already come into existence" (Hilkhot Mekhira 22:2). The way to get around this is to sell the property itself for its fruit:

 

A person can transfer ownership over a property itself for its fruit… This is not considered to be transferring ownership of an entity that has not come into existence. For the article itself exists, and the person is transferring ownership over it for the fruit… How so? For example, where a person sold or gave away a field for its fruit for a limited time, or for the entire lifetime of the seller or of the purchaser. Similar rules apply to a person who sells or gives away a tree for its fruit, a sheep for its shearings, an animal or a maidservant for her offspring or a servant for his work. In all such instances, the sale or the present is binding. (ibid. 23:1-2)

 

            The Rambam emphasizes that selling property for its produce involves the sale of the property itself, and therefore there is no problem of "something that has not yet come into existence," because the sale relates to a right in property that already exists. This is despite the fact that the Rambam rules that kinyan peirot lav ke-kinyan ha-guf dami (Hilkhot Bikkurim 4:6).

 

            About what point do the Amoraim disagree? They disagree about the halakhic implications of the agreed upon facts, and about the way in which the Torah sees the situation in which the property itself is owned fundamentally by one person, while it is owned for its fruit by another person. According to Rabbi Yochanan, the essence [editor: or focus] of ownership of property relates to its fruit and uses, and therefore the primary figure that can be seen as owner of the property is he who owns the right to the fruit. As the Rashbam formulates this idea in Bava Batra 50a, s.v. ke-kinyan: "For the property itself is intended for nothing but its fruit." Resh Lakish, in contrast, maintains that ownership is not defined by the enjoyment of its fruit, and that it has great weight even when void of practical content. I have used relative, rather than absolute terms, and I emphasize them, for the reason that we will immediately see.

 

            [It should be noted that it is difficult to ignore the similarity between this dispute and another famous disagreement between Rabbi Yochanan and Resh Lakish, above, on p. 69a. According to Rabbi Yochanan, when an item belongs to a certain person, but it is not in his physical possession, e.g., where it was stolen from him, his ownership is affected, and he cannot perform certain halakhic actions, e.g., he cannot consecrate the item to the Temple. Resh Lakish disagrees. The disagreements relate to different issues, and the rulings about them are not identical, but on the conceptual level the similarity is clear. According to Rabbi Yochanan, ownership is affected by the practical dimension, and therefore someone who owns something, but it is not under his control, is not considered its owner for all purposes. Resh Lakish, on the other hand, gives weight to theoretical ownership in itself.]

 

            It is possible, however, that we should narrow the disagreement, and to a certain extent bring the disputants closer together. On the one hand, it is clear that even Rabbi Yochanan agrees that the ownership of the party possessing kinyan ha-guf is not erased by the kinyan peirot belonging to the other party. It stands to reason that regarding certain laws, it is precisely the pure and abstract ownership that is critical, even according to him. Thus, for example, argue the Tosafot (Yevamot 66a, s.v. almana), the allowance to feed teruma to the slaves of a priest depends on the kinyan ha-guf, and it does not suffice that they belong to him for their benefits. On the other hand, some maintain that when a person buys property for its fruit forever, even Resh Lakish agrees that the accumulated weight of his practical rights in the property are critical and that in such a case kinyan peirot ke-kinyan ha-guf dami.[1]

 

            In any event, it should be emphasized that according to the explanation suggested above, when Reuven transfers property to Shimon for its fruit, even Rabbi Yochanan agrees that Reuven is the owner of the property itself (and the disagreement is only whether or not kinyan peirot is akin to kinyan ha-guf). On the other hand, Resh Lakish agrees that Shimon owns the property itself for its fruit.

 

            [This point regarding Resh Lakish finds expression in the words of the Rashbam in Bava Batra 136b regarding bikkurim. According to Resh Lakish, the person who has kinyan peirot brings the bikkurim, but does not recite the declaration. Many Rishonim maintain that by Torah law there is also no obligation to bring the bikkurim, for why should there be a difference between bringing the bikkurim and reciting the declaration. The Rashbam, however, argues that there is a difference between the two:

 

He must bring [the bikkurim] but does not recite [the declaration] – Since he cannot recite: "The land that you have given me." But he is obligated to bring [them], because it is written: "From your land," for he pledged to him the right to draw from the land for its fruit.

 

            What this means is that the obligation to bring bikkurim relates to the fruit that come from the bringer's land, and since the land itself belongs to him for the fruit, the fruit is considered fruit from his land. The obligation to recite the declaration, on the other hand, relates to the land in itself: Not fruit that you bring from your land, but rather an expression of gratitude for the land that God gave you. Here Rabbi Yochanan and Resh Lakish disagree whether land belonging to a person for its fruit is considered his land or not. According to Resh Lakish it is not his land, but the fruit growing there is considered the fruit of his land. The Rashbam writes further[2] that even according to Resh Lakish, kinyan peirot suffices regarding an etrog, to fulfill one's obligation on the first day of Sukkot, as the etrog is considered "yours."

 

 

II. A Sale executed by the person who has Kinyan Ha-Guf

 

 

            The mishna in Bava Batra 136a deals with a person who "assigns his estate in writing to his son, to be his after his death." The Gemara there and in our passage clarifies that this means transferring the land itself from today and the fruit after his death. Presumably, the father's intention is to circumvent the laws of inheritance and give a particular son property that he won't be forced to divide up with his brothers. Therefore, the father transfers the land itself to his son during his lifetime, but he wants to use it until he dies. Since it is impossible to transfer property after death (i.e., one can defer a transfer, saying: "My field will be transferred to you after thirty days," but he cannot say: "My field will be transferred to you after my death"), he transfers the property itself already now. Rabbi Akiva Eiger[3] maintains that the fruit can also not be transferred after death, and therefore he explains that the father transfers the property to his son in absolute fashion already during his lifetime, only that he retains for himself the right to the fruit of the property until he dies. There is no additional transfer at the moment of death; all that happens is that the period of retaining the right to the fruit comes to an end.

 

            The mishna in Bava Batra that is cited in our passage states: "If the son sold [it], the buyer has no claim whatsoever upon it until the father's death." It is clear from the mishna that the son can sell his rights in the property, but of course the buyer cannot enjoy the fruit or use the property until the father dies. There would seem to be a fundamental problem here, for a person cannot sell something that has not yet come into his hands, as this is considered something that has not yet come into existence, even if we are dealing with kinyan peirot. However, according to the understanding that the son received full ownership, only that the father retained for himself the right to the fruit during his lifetime, we can understand that the son can transfer his ownership to the buyer. Therefore, the problem arises only according to the view of Rabbi Yochanan. In his view, since the person who has kinyan ha-guf does not have the status of owner, he cannot transfer even that which he now has, i.e., the qualified ownership. This brings to mind his position regarding something that is not presently in his possession – the deficiency in his ownership prevents him from executing certain legal actions with respect to the property. For this reason Rabbi Yochanan says that the sale is not valid if the son dies during his father's lifetime. Why then is the sale valid if the father dies during his son's lifetime?

 

            Rashi in our passage relates to this question, and explains: "For what does the first one transfer to the second one – all the rights that will come to his hand." The Tosafot in Yevamot 36b, s.v. ve-Rabbi, raise the question explicitly, and write:

 

You might ask: According to Rabbi Yochanan, even if the son does not die during his father's lifetime, the sale should not be valid, as it is like (Bava Metzia 16a): "That which I shall inherit from my father is transferred to you," as he maintains that kinyan peirot is as strong as kinyan ha-guf? You can say that for this matter, kinyan peirot is not strong enough to completely cancel the kinyan ha-guf owned by the son, and since in the end the field will come into the hands of the son, the sale is valid.

 

            It may be understood that we are dealing here with a deferred sale, and that the weakness of the person with the kinyan ha-guf is not that great that the property should be considered as not having come into existence. But the matter can also be understood differently. It is possible that a future scenario in which the property with all its practical rights will reach the son already paints in different colors the way we relate to his rights at the time of the sale.[4] When we consider years later, when the transaction should have practical consequences, whether at the time of the sale the son tried to sell a real asset or abstract and meaningless ownership, importance is attached to the fact that later in his life the son acquires kinyan peirot in the property. This teaches us that his relationship to the property did not exhaust itself in an abstract halakhic title, but rather it was backed by real rights.

 

It is possible that this explanation emerges from the wording of the Ran in his novellae to Bava Batra 136b. The Ran explains that the basic problem of the son to sell is "that the son's ownership is weak." Nevertheless, he can pass it on to the grandson – for even Rabbi Yochanan agrees that if the son died during his father's lifetime, the son of the son inherits the kinyan ha-guf and acquires the property with its fruit when his grandfather dies. This is because "something lacking substance" is subject to inheritance, but not to sale. Or as the Ran formulates it: "As we find regarding air-space, that if one sold it, it is not sold, but nonetheless the heir inherits it." As for the problem that is troubling us, that is, the son's ability to sell the property when the father dies during his son's lifetime, the Ran explains (making use of the words of Rashi): "The son also has a kinyan ha-guf in the property, only that his rights hang. When the father dies during his son's lifetime, it becomes evident that he acquired it from that time, and since from the outset it was connected to him, he sold to the buyer all rights coming to his hand."

 

            Thus far we have explained the passage in accordance with certain assumptions regarding the disagreement between Rabbi Yochanan and Resh Lakish, namely, that all agree that the person having kinyan ha-guf has the basic ownership of the property, and all agree that the person having kinyan peirot owns the property for its fruit, and they only disagree as to which of the two is considered the primary owner of the property. It appears, however, that these assumptions are not universally accepted.

 

            Let us consider, for example, the words of the Ri Migash in Bava Batra. The objection with which he opens understands the idea that kinyan peirot ke-kinyan ha-guf dami according to Rabbi Yochanan in the most extreme manner: "How do we say: kinyan peirot ke-kinyan ha-guf dami? But surely we said above that he said to him: The property itself is transferred today, while the fruit is transferred after death." At this stage, the Ri Migash understands that the person having kinyan peirot is the absolute owner of the property, and therefore he argues that the father gave the son nothing.

 

            In his answer, the Ri Migash understands that Rabbi Yochanan's novel position is much more moderate. In fact, it is so moderate, that the real novelty lies in the fact that Resh Lakish does not accept it:

 

The ownership in question that the father owns the property itself is not real ownership… Rather it is for the fruit that the father owns the property itself. For as long as he is alive so that he owns the fruit, he owns the property itself for the fruit. It is not real ownership, but ownership for the fruit, similar to one who sells his field for the fruit….

 

            According to the Ri Migash, the novelty in Rabbi Yochanan's position is not in the competition between the person having kinyan peirot and the one having kinyan ha-guf, but in the very assertion that kinyan peirot is not only a right to the fruit, but rather ownership of the property itself for the fruit. The implication is that according to Resh Lakish, kinyan peirot is not ownership of the property for the fruit, but only a right to the fruit (it is not clear how he overcomes the problem of transferring ownership over something that does not yet exist). Thus writes the Alshikh (Responsa Maharam Alshikh, no. 18), in the context of a comprehensive responsum in which he analyses the passage: "According to Resh Lakish, [kinyan peirot] lav ke-kinyan ha-guf dami, and it is as if the father retains nothing in the property itself. If so, he retains nothing in the land that would have to be passed down after his death, so that we should say that he inherits him in the grave, and that he can't transfer it to the buyer. Rather it is as if he stipulated about something that is not connected to the land, and all ownership of the land was transferred to the son, and for this reason when the father dies, he automatically eats of the fruit of the buyer, because all ownership of the land was his."

 

            Let us now move on to the case with which our passage opens, that of a woman who sold her husband's property. Before we consider the main discussion arising in the passage in this context – the enactment of Usha, I wish to note that the attempt rejected by the Gemara to distinguish between the case of a father and a son, and the case of a husband and a wife (or the case of a son and a father), on the basis of "ra’uy le-yorsho" ("fit to inherit him"), at least according to Rashi's explanation (compare with Rabbeinu Peretz), raises a weighty question against our fundamental analysis of the disagreement between Rabbi Yochanan and Resh Lakish, and places on the table the possibility that we are dealing with a dispute regarding our assessment of the intentions of the two parties. In our passage, there is no reason to go on at length about this, because there is nothing preventing us from understanding that this was absolutely rejected, and even according to the Gemara's initial assumption, it is possible to understand differently. This issue rises more strongly in Bava Batra 136b, and there is room to examine the issue there.

 

III. The enactment of Usha

 

            The Sages enacted that a husband enjoys the right to the fruit of his wife's property (in exchange for his obligation to ransom her from captivity; Ketubot 47b). This is one of a series of laws that define the rights and obligations of husband and wife. According to the simple understanding, this law in itself belongs to an entirely different realm – the laws of family connection and inheritance. [I wish to note that the Gemara in Bekhorot 52b discusses a dispute as to whether a husband inherits his wife's property by Torah law or by rabbinic decree, and it is explained there that if the husband inherits by rabbinic decree, this means that this law as well is part of the set of rights and obligations of the husband and the wife, that the Rabbis instituted that he should inherit her estate in exchange for his obligation to bury her, and the husband does not acquire the property as an heir, but as a buyer.]

 

            It would seem that while she is married, the woman enjoys the abstract kinyan ha-guf, and her sale of the property to another person is similar to the son's sale of his father's property in the mishna in Bava Batra. Indeed, in a certain sense the situation is just the reverse, for in the case of the son who has the kinyan ha-guf, it is he who expects to receive the right to the fruit (upon his father's passing), whereas in the case of the wife it is the husband who has the kinyan peirot who expects to receive the property itself (with the death of the wife). But whatever we said regarding the dispute between Rabbi Yochanan and Resh Lakish is valid here as well. Since the Halakha is in accordance with Resh Lakish, the sale is valid. According to the simple understanding, the woman cannot impair her husband's right to the fruit, but when she dies, the husband's right to the fruit based on the enactment instituted in Usha lapses, and all that he is left with is his right to her estate. The right of an heir is limited to that which is found in the hands of the deceased when he dies, and therefore the buyers acquire the property itself and the fruit.

 

            Here, however, the Gemara introduces a new factor that allows the husband to recover the property from the buyers even after his wife's death:

 

The reason of [Shmuel's remark that] "This case cannot be compared to that stated in the mishna" is because of the [Rabbinic] enactment at Usha. For Rabbi Yose bar Chanina said: It was enacted at Usha that if a woman disposes of her melog property [editor: property that the woman held exclusively prior to her marriage] during the lifetime of her husband and subsequently dies, the husband will be entitled to recover them from the hands of the buyers.

 

            Rashi writes that the Sages were concerned about "enmity" – a deterioration of the relationship between husband and wife, that he would suspect her of impairing his future inheritance. How does this enactment work? On the face of it, there is no reason not to understand that the Sages of Usha instituted a localized enactment, that the sale executed by the woman is null and void. However, from various passages, including the continuation of our passage, it seems that the enactment is based on a certain change in one of the laws mentioned earlier (the enactment concerning usufruct and the husband's inheritance), and this change is liable to have additional ramifications beyond the cancelation of the sale.

 

            Let us examine the words of Rashi:

 

"It was enacted at Usha"- Even though in general [kinyan peirot] lav ke-kinyan ha-guf dami, regarding a husband with respect to his wife's property, the Rabbis strengthened his lien because of [the concern about] enmity, and make him like a first buyer.

 

            Rashi mentions two different halakhic principles that may serve as the basis for the enactment of Usha. The first principle is that of something like "kinyan peirot ke-kinyan ha-guf dami": even though the Halakha is in accordance with Resh Lakish that kinyan peirot lav ke-kinyan ha-guf dami, in the case of the enactment that the usufruct belongs to the husband, the Sages strengthened the kinyan peirot and made it more akin to kinyan ha-guf. This being the case, the sale is void, because the woman who executed the sale had only an abstract and flimsy kinyan that is not subject to sale.

 

            The second principle is that he is "like a first buyer." This principle is rooted in several passages in the Gemara which establish that a husband enjoys the status of a "buyer" with respect to his wife's property, and base this assertion on the enactment in Usha. Thus, for example, the Gemara in Bava Metzia 35a states that if a creditor collected landed property from the debtor as payment of the debt, and then the debtor's financial situation improved, he can redeem his property. But if the creditor had already sold the property, the buyer need not cede it to the debtor. The Gemara there adds that a husband with respect to his wife's property is like a buyer, due to the enactment in Usha. Rashi there explains the connection between the two laws as follows: "The husband can recover the land from the buyer… This implies that the Sages made him like a buyer, who can say to him: I am the first buyer. For if the Sages made him like any other heir, an heir whose father sold his property during his lifetime has no inheritance." That is to say, the husband's priority over those who bought the property from his wife can be understood as based on the fact that the Sages gave him the status of first buyer – he is not an ordinary heir, but rather it is as if he already bought the property during his wife's lifetime. Even though he is not the absolute owner, it can be said that he already bought the period of ownership following his wife's death, and therefore it is not within her power to sell it and remove it from his possession.

 

            If so, which law did the enactment of Usha strengthen – the husband's right to fruit or his standing as an heir/buyer? The Acharonim write at length about this question and about the precise definition of the enactment of Usha in light of it. The most important of them was the author of the Ketzot ha-Choshen and the Avnei Milu'ím in many places in his books, and we do not presume to exhaust this subject. From the simple understanding of the words of Rashi in our passage cited above it would seem that the enactment rests on both of these laws, and even creates a relationship between them. The way to turn the husband into the first buyer of the property following his wife's death was to strengthen his right to the fruit of that property during her lifetime. Thus there was created an ownership continuum between the two periods, and along this continuum the husband acquires the fruit at the time of his marriage and also the status of buyer of the final ownership during the period after his wife's death, the wife's death completing the transfer of ownership. It is also possible that the justification for seeing the husband's kinyan peirot as stronger than an ordinary kinyan peirot follows from this continuum – if kinyan peirot lav ke-kinyan ha-guf dami, it is difficult to say that this kinyan should be different than another kinyan. The justification lies in the fact that this is a kinyan that is on the way of turning into a full kinyan, and as a buyer and not as an heir.

 

            The wording of the Rambam also implies that after the enactment of Usha a continuum was created between the kinyan peirot of the husband and his right to inherit his wife after her death:

 

During a woman's lifetime, her husband enjoys the fruit of all the property she owns… If she dies in her husband's lifetime, her husband inherits everything. Therefore, if the woman sold property classified as melog property after she married… her husband may expropriate the fruit from that property from the buyers throughout his wife's lifetime. He may not, however, expropriate the land itself, for he has no right to the land itself, if it is classified as melog property, until his wife dies. If she dies in his lifetime, he may expropriate the land from the buyers without paying them for it." (Hilkhot Ishut 22:7)

 

The enactment in Usha according to Rabbi Yochanan

 

            One of the contexts in which expression is given to the questions regarding the precise definition of the enactment in Usha can be seen in the answers offered by the Rishonim to the question, why was the enactment in Usha necessary according to Rabbi Yochanan, who maintains that kinyan peirot ke-kinyan ha-guf dami. Surely, according to Rabbi Yochanan, the fact that the husband has peirot should suffice to prevent his wife from selling the property. Why then was the enactment necessary?

 

            The Tosafot in our passage (s.v. be-Usha) raised this question, and answered that Rabbi Yochanan maintains that the enactment in Usha was necessary for the situation in which the husband waived his right to the fruit of his wife's property, in which case there would be nothing to prevent the woman from selling her property were it not for the enactment in Usha. From here it is clear that the enactment works not by recognizing the husband's kinyan peirot ke-kinyan ha-guf dami. Rather the husband is granted the authority of an owner or a quasi-owner to prevent the sale. The Ketzot (103, no. 9) proposed that this novel idea was only stated according to Rabbi Yochanan, but as the law is in accordance with Resh Lakish, there is no room for it, but the plain understanding of the Tosafot implies otherwise.

 

            The Tosafot in Yevamot 36b (s.v. kinyan) raises this question, and gives the aforementioned answer, but along with it three additional answers.[5] According to one answer, the enactment was in fact not necessary according to the viewpoint of Rabbi Yochanan. It is possible that this answer had difficulty accepting the aforementioned novelty, and assumed as obvious that the Usha enactment is in force only when the husband enjoys kinyan peirot, and according to the viewpoint of Resh Lakish the Sages of Usha strengthened it so that it is akin to kinyan ha-guf (compare with the way that the Rashba in our passage attacked the answer that says that enactment was only necessary in the case where the husband waived his kinyan peirot).

 

            The two other answers in the Tosafot in Yevamot are to some extent interconnected and they are based on the weakness of the husband's kinyan peirot in contrast to ordinary ownership:

 

A wife's kinyan ha-guf is stronger, because the husband only has the fruit through her. And furthermore, the husband only has fruit by rabbinic decree.

 

            According to these answers, a husband's kinyan peirot is not akin to kinyan ha-guf even according to Rabbi Yochanan: "Because the husband only has the fruit through her" – it is possible that this means that we are not dealing with a real kinyan peirot, i.e., with a real kinyan in the property itself for the fruit, but rather with a right that the Sages granted the husband to eat the fruit. The second answer ("And furthermore") reinforces this by saying that we are dealing with a rabbinic enactment, based on the understanding that the Sages did not grant the husband a kinyan, but merely gave him a right. Therefore, the woman retains the status of owner, and could have sold the property had it not been for the Usha enactment. But here, of course, we must understand the change brought about by the enactment – does the enactment merely bar the woman from selling the property, or does it change the husband's ownership status. This point will be clarified in the continuation of our passage next week.

 

            I wish to note that this weakness of the husband's kinyan peirot finds expression in various laws.[6] Thus, for example, the husband cannot transfer his kinyan peirot to another person: "When a husband sells the land [belonging to his wife] for the fruit, [the sale] is of no consequence. [The rationale is that] the reason our Sages granted a man [the right to] to the fruit is so that he will spend more generously on the household expenses" (Rambam, Hilkhot Ishut 22:20, based on Ketubot 80a-80b). [We shall return to the issue of selling melog property on p. 90a].

 

(Translated by David Strauss)

           

Sources For the next Shiur – Bava Kama 24

The law of "a tooth and an eye" and the law of "A day or two days" in cases of split ownership (89b-90a)

 

            For the next shiur, learn the Gemara from p. 89b: "leima takanat Usha tannai hu," until the mishna on p. 90a. (The Gemara in the middle between this week's shiur and the next shiur, fill in on your own.) The Gemara continues the discussion regarding the issues that were dealt with in this week's shiur, "kinyan peirot ke-kinyan ha-guf dami" and the enactment of Usha, while analyzing the Tannaitic dispute regarding "a tooth and an eye" and "a day or two days." Focus on how the dispute was understood at each stage of the Gemara.

 

Additional sources:

 

1. Tosafot Rid 89b: "savruhu de-kulei alma" until "eino yakhol le-hafkia." What is the difficulty with which he is dealing, and what distinction helps him? Does Rashi agree with his understanding of the passage?

 

2. Tosafot 90a, s.v. Rabbi Meir; s.v. ish; Tosafot Rid 90a: "ke-man azla ha de-tanya" until "shutaf im acher."


[1] See Mishneh Lemelekh, Hilkhot Malveh ve-Loveh 4:14, s.v. od katav Muharimat.

[2] 137a, s.v. ad kan; 137b, s.v. de'i mefak.

[3] Responsa Rabbi Akiva Eiger, 2nd series, no. 88. See there where he cites the dissenting position of the Beit Meir.

[4] Continuing with the comparison to something that is not currently in a person's possession, there too we find a similar position. See the Rosh in Shita Mekubetzet, Bava Kama 33a: "For after he collected it and it came into his possesion… we see it as if already at the outset, when he consecrated it, it was already in his possession… And that which Rabbi Yochanan said that it is not consecrated is where he did not collect it by way of the court."

[5] For further study, see another answer cited in the Shita Mekubbetzet, Bava Batra 136b, in the name of Tosafot Rosh, who has a novel understanding of the general dispute between Rabbi Yochanan and Resh Lakish regarding kinyan peirot: "It was needed even according to Rabbi Yochanan, for here the son is not regarded as having kinyan ha-guf so that he can sell it, because it never came into his hand. But there the property itself had belonged to the woman. And even though below regarding one who sells his field for its fruit, Rabbi Yochanan maintains that kinyan peirot ke-kinyan ha-guf dami, even though the seller's kinyan ha-guf was already in his hand, there it is considered akin to kinyan ha-guf for the purpose that the owner of the fruit can say: 'the land that You gave me.' And it is possible that the seller as well if he would buy the fruit, he would bring [the bikkurim] and recite [the declaration]. For kinyan peirot does not have the power to cancel kinyan ha-guf where the property itself was already in his hand. Therefore we need the enactment in Usha even according to Rabbi Yochanan."

[6] Mention should be made of the law that when a cow that is part of a woman's melog property gives birth, though we might have thought that the husband becomes the simple and ordinary owner of the calf, if the calf was stolen, the husband is not entitled to two-fold payment from the thief [see Ketubot 79b; Rambam, Hilkhot Ishut 22:28].