The Nature of Kinyan Chatzer

  • Rav Moshe Taragin

Several gemarot establish the principle of kinyan chatzer.  Though personal possession entails the most basic form of ownership, the gemara recognizes the capacity of 'chatzer' to almost mimic physical possession.  This article will explore the nature of kinyan chatzer, particularly the way in which it duplicates physical possession.      

 

     In general, the gemara is aware that placing an item in my chatzer (loosely defined as house, land or courtyard) is an effective form of kinyan – namely, it can be utilized as a device to effect the transfer of legal title.  The gemara concedes that a chatzer's viability might be understood as a variety of shlichut.  Just as I can appoint an agent to acquire an item on my behalf, so my land or zone may automatically act as my agent in acquiring items.  Two gemarot in Bava Metzia - (10b) and (12a) - accede that at the very least a chatzer can be likened to a shliach.  However, the gemara in Gittin (77a) and Bava Kama (64b) assert a more dramatic role for chatzer - it can be considered the 'yad' (literally HAND) of the person and can thereby acquire an item on his behalf (just as if it had entered his hand).  The gemara derives this notion from two pesukim (appearing in the Torah with regard to divorce and theft respectively) that allow for an expansion from a person's literal hand to his virtual one (chatzer).  Evidently, a chatzer operates more intensely than a mere agent.  As my house is my personal area, its hold upon items is likened to the hold that my hand exerts.

 

     The degree to which a chatzer is compared to a hand must still be investigated.  By drawing this equation does the gemara intend to envision a chatzer as literally an extension of someone's hand?  Indeed, halakha clearly recognizes certain situations as if a particular item were contained within a person's hand.  For example, the gemara claims that if an eved kena'ani acquires an item, we may consider the item as being in the hands of his master.  An owner has such dominance over his slave that items possessed by the latter are considered 'physically' held by the former!!  Does the gemara intend the same definition for chatzer?  The access I maintain within my chatzer is so extensive that items contained therein are considered as if they are in my hand?  Or does the gemara acknowledge that placement within a chatzer can never fully simulate possession within a hand.  By coining the phrase 'chatzer mita'am yad' (chatzer works as a hand) the gemara merely intends to isolate chatzer as a stronger hold than a mere shliach.  The manner in which it represents the owner supersedes the concept of shliach, and the gemara captured this difference by phrasing the chatzer as a 'yad.'

 

This question of how literally to take the gemara's comparison of chatzer to yad might influence several important issues.  For example, the gemara in Gittin (77b) cites a debate between Ula and Rav Hoshai'a regarding whether the owner of the chatzer must be standing adjacent to the chatzer at the time when the item enters the land.  Ula demands this adjacency in the same manner that a person's hand is always (by definition) attached to his body.  By contrast, Rav Hoshai'a allows a chatzer to represent someone even if he is absent at the time of acquisition.  He merely requires that the item be guarded or protected by the chatzer on behalf of the owner.  These Amoraim might be arguing over our earlier stated question: Do we view a chatzer as an extension of someone's hand and therefore demand attributes that allow this visualization (the owner standing near the chatzer)?  Or do we loosely interpret chatzer as 'yad' to mean some new form of kinyan (more intense that shlichut) and merely require that the chatzer protect the item on behalf of the owner?

 

     A second question that seems to reflect our original issue is the concept of chatzer mihalechet.  The gemara (Bava Metzia 9b, Gittin 21a, 78a) disqualifies an animal or slave from serving as a chatzer because these types of chatzer are moving.  Why should a portable item be incapable of serving as my chatzer?  Tosafot (Gittin 21a) note that something that moves loses its likeness to a hand (which doesn't move from a person's body).  Evidently, Tosafot took the comparison of chatzer to hand quite literally and demanded that the chatzer closely resemble a hand.  Other Rishonim assert different reasons for the disqualification of a moving chatzer but do not demand that a chatzer be stationary to resemble a hand.  They, in turn, might not read 'chatzer mita'am yad' as literally as Tosafot did. 

 

     A third manifestation of this issue might be detected in a very interesting Tosafot in Bava Batra (79a).  The gemara addresses the issue of me'ila (abusing the property of hekdesh) regarding items that became hekdesh through chatzer.  If water flowed into a pit owned by hekdesh, would a person be disallowed from using this water?  The gemara suggests that the prohibition of me'ila would not apply.  Many Rishonim (see for example the Ramban) claim that though the chatzer of hekdesh did indeed acquire the items for hekdesh, the specific halakha of me'ila will not apply to these types of items.  Me'ila, they claim, will only apply to items that became hekdesh through some verbal designation.  Tosafot though, offer a different view.  They claim that hekdesh cannot acquire items through the process of chatzer since "there is no yad for hekdesh."  Tosafot do not clarify their intentions but we might speculate that as chatzer entails an extension of someone's hand it might only apply to ownership that relates to actual people with actual hands (to be expanded to a chatzer).  As the ownership of hekdesh is abstract and not a function of a particular individual, we might not be able to apply chatzer as yad.

 

SUMMARY

 

We have suggested two different approaches to the gemara's comparison of chatzer mita'am yad.  Does the gemara view a person's land or house as the halakhic extension of his hand or does it view chatzer as some new kinyan (items located in my holding area become mine) and employ the term 'yad' in a figurative sense.  Both the Amoraim and the Rishonim might have been debating this concern and gauging whether we must apply the criteria of a person's hand to a halakhically viable chatzer.

 

     One final issue might pertain to the scope of chatzer as yad.  As stated earlier, the Torah allows chatzer as yad with regard to the delivering of a 'get' and the prohibition of geneiva (if a person steals an item by placing it in his chatzer).  Given that the Torah has established the concept of chatzer as yad, to what extent are we free to apply it to other areas of halakha?  The gemara in Sanhedrin (85b) discusses a kidnapper, and recognizes a chatzer as the equivalent of a person's hand.  Tosafot is bothered by the absence of a source indicating this equation.  They assume the existence of some source even though the gemara does not mention any.  Our ability to freely apply the chatzer mita'am yad concept might depend upon our definition of that concept.  If the Torah establishes a chatzer as the extension of someone's hand, we would probably view this reality as universal.  If a chatzer is considered an extension of a woman's hand for the purposes of 'get,' it should be considered the extension of a kidnapper's hand.  The same pasuk that established the former rule should allow the latter.  If, however, the Torah's decree established a new kinyan called chatzer (independent and unlike a person's hand), we can't be certain that this kinyan will automatically apply to all areas of halakha.  Just because this new variety of kinyan is sufficient for 'get' does not necessarily make it sufficient for purposes of a kidnapper.

 

 

A similar question pertaining to the scope of chatzer as 'yad' is raised by the gemara Bava Metzia (10b) questioning the viability of chatzer as yad for the purposes of acquiring a lost item.  Extrapolating chatzer as yad from 'get' to metzia might also depend upon our definition of the chatzer mita'am yad rule.