Kinyan Hagbaha

          Last week's edition considered the nature of the ma'aseh kinyan known as meshikha.  In keeping with this 'theme' this article will investigate a parallel kinyan known as hagbaha.

 

          Hagbaha is the process whereby the item to be transferred is grasped by the new owner and lifted into the air, thereby demonstrating the acquisition of new ownership.  A pivotal machloket exists between Rashi and Tosafot regarding the 'shiur' - or minimum height required for this hoisting.  Quite possibly, this dispute revolves around the essence of the entire kinyan hagbaha.

 

          The gemara in Ketubot (30a) discusses a case whereby a person might eat a piece of food without being koneh that piece prior to its actual entry into his mouth.  In general, immediately after picking up the food, he would be koneh through hagbaha.  If, however, he is 'gachin ve-akhil' - he bends down and instead of lifting the food, drags it into his mouth - he is not koneh the food until he actually swallows it.  This induces Rashi to declare that an effective hagbaha requires lifting at least three tefachim.  Tosafot rejects this requirement and reinterprets the above statement.  Tosafot believe that a  raising the item, even less than three tefachim is sufficient to effect a ma'aseh kinyan of hagbaha.

 

          This same dispute emerges in a gemara in Kiddushin (26a) which inquires as to the method of being koneh an elephant.  One scenario suggested by the gemara is 'chavilei zemorot' whereby the elephant is guided so that it walks on top of piles of sticks and is, thus, elevated from the land-  a kinyan hagbaha.  Rashi in Kiddushin emphasizes than unless the layer of sticks is piled three tefachim high the kinyan hagbaha is ineffective.  Tosafot in Kiddushin cite the position of the Rabenu Tam which argues and doesn't require three tefachim.

 

          Our inquiry begins with Rashi.  How might we explain the need for an elevation of three tefachim?  Intuitively, we might accept the Rabenu Tam.  Assuming an act of hagbaha was performed why should the height have any influence?  Rashi in Kiddushin (26a) explains his position based upon the widespread principle of 'lavud'.  In the halakhic system, a space less than three tefachim is considered closed or connected.  For example, in the case of Sukka, gaps of less than three tefachim between pieces of s'khakh do not interrupt the s'khakh, but instead, the entire roof is considered connected.  The gemara in Shabbat discusses building a wall on shabbat from series of ropes strung horizontally across an area at a distance of less then three tefachim from each other.   In this case we view the open area between parts of the wall as if they were plugged.  In our case of hagbaha as well Rashi determines that if the item hasn't been lifted at least three tefachim it is considered as if the item has never left the ground.  The three tefachim radius above the land is considered attached to the land thus canceling the effects of this hagbaha which hasn't removed the item from this vicinity.  In order for hagbaha to be meaningful and expressive of the loke'ach's newfound ba'alut, it must relocate the item beyond the three tefach boundary.

          Our attention now returns to the position of the Rabenu Tam.  If lavud dictates that the area less than three tefachim is considered part and parcel of the land then no meaningful action has occurred!!

 

          Understanding  the manner in which Rabenu Tam might disagree with Rashi requires an understanding of the two assumptions which Rashi must make in order to arrive at his position:

A.  Less than three tefachim is indeed considered closed and ENTIRELY filled through the halakha of lavud.

B.  Kinyan hagbaha must perform some indicative action which is stifled by the object's remaining on the 'halakhic ground'.

 

          By questioning either of these assumptions, the Rabenu Tam might arrive at a different conclusion as to hagbaha which doesn't lift the item above three tefachim.  We will begin with the first assumption.

 

          Indeed the concept of lavud if fairly well grounded (excuse the pun) within halakha and appears in various contexts.  The gemara in Sukka goes as far as to call it a halakha le-Moshe mi-Sinai.  It would be indeed difficult for the Rabenu Tam to outright dispute the halakha.  What he might, however, contend with, is Rashi's UNDERSTANDING of the halakha.  Rashi viewed lavud as determining that the immediate airspace/radius is considered closed or filled, attached to the ground within three tefachim of it.  This represents one opinion of lavud.  Alternatively, we might not consider the area completely closed but, rather, the halakha determines that the intervening area does not represent a disruption of the s'khakh or the wall.  If the pieces of s'khakh are separated from each other by MORE than three tefachim they  cannot be combined in determining the shiur of the surface area of s'khakh because they do not constitute one roof.  If, however,  the separation is less than three tefachim they are in enough proximity to be considered as one roof despite the physical gap.  This does not maintain that the intervening area is considered entirely closed but rather that in halakhic eyes this gap is not meaningful enough to represent a HEFSEK.  The nafka minot to this question in the broad sense are crucial.  For example in the case of less than three tefachim in a sukka can one sit under the 'open area'.  If we view lavud as plugging the area we might validate sitting under the open area for we might consider the area as FILLED IN with s'khakh.  Additionally, what would happen in a sukka which has the exact shiur (7 X 7) and part of its s'khakh (less than three tefachim ) were missing.  In this instance it is critical not merely to ignore this space as a potential hefsek but also to consider it as s'khakh so that the minimum shiur of s'khakh (7 X 7) is attained (for these two cases see the gemara Sukka (19a).

 

          In terms of our sugya, quite possibly, Rabenu Tam differed with Rashi regarding the perception of lavud.  To the Rabenu Tam we don't consider the three tefach radius of air space as ATTACHED to the ground.  Lavud is a relative halakha which allows us to associate material (walls, roofs, etc.) which are physically separated by an insignificant distance.  It does not, however, plug in open areas.  Hence the area above the ground is considered separate and an item lifted, even within three tefachim has been moved in a meaningful manner - a kinyan hagbaha has been performed.  By contrast, Rashi viewed lavud as "satum'; the item is still considered lying atop the land and no act of elevation has really occurred.

 

SUMMARY:

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          The machloket between Rashi and Rabenu Tam might reflect a broader question about the nature of lavud.  Do we view the immediate vicinity of three tefachim as closed or plugged or do we discount the import of this area not allowing it to disrupt the continuity of a wall or a roof.  It is not a significant 'hefsek' but is also not considered satum.

 

          Alternatively, the Rabenu Tam might have agreed to Rashi's conception of lavud but differed with him regarding the nature and requirements of kinyan hagbaha.  Indeed, if the hagbaha demonstrates ba'alut by moving the area in an upward direction, exerting control and dominance, (akin to kinyan meshikha), if we consider lavud as satum, no act of elevation has occurred until the item clears this three tefach radius.  However, we might interpret kinyan hagbaha and its objective slightly differently.  The gemara in Ketubot (31b) cites an instance whereby one can be koneh an object by placing it entirely in his hand even without lifting AT ALL (tziref yado le-mata)!  Rashi comments that this represents a kinyan of yad - a person's hand is no worse than his reshut.  In this case holding the item in your 'possession' even without performing any action constitutes a ma'aseh kinyan just like having an item placed in your chatzer accomplishes the kinyan.  This kinyan yad operates even below three tefachim because the item is considered in your hand and your reshut.  Indeed, several mefarshim ask, if kinyan yad exists without ANY elevation why is there a need or any meaning to kinyan hagbaha?  The Netivot 298:3 poses this question and discriminates as follows: For kinyan yad to be effective the entire item must rest within the domain of the hand.  In SUCH a case no movement is necessary.  By contrast, if only PART of the item is contained within the hand, only kinyan hagbaha is effective and this requires some elevation.  Essentially, the Netivot establishes two different categories of kinyan: Yad which demonstrates the transfer by fixing the item in the new reshut (hand), and hagbaha.  Each has different criteria and are performed differently.

 

          But how different are they?  Quite possibly, hagbaha is a parallel of yad.  If the item is fully contained within the hand and rests firmly in the reshut no act of bringing it into the reshut is necessary.  This resembles, most strikingly, kinyan chatzer where the location of an item determines its changed ownership even though the ba'al did nothing active to establish that location.  If, however, the item is only PARTIALLY in the hand, in order for its location to be indicative of ownership and to generate new ownership, the loke'ach must ACTIVELY bring it into his hand and perform some action which underscores this condition.  He must actually lift it from its present location - the area where it lied when still owned by the previous ba'al - to highlight the transfer which is  evidenced by the  new location.  Essentially, kinyan yad and kinyan hagbaha are derivatives of the same essential kinyan - demonstrating ba'alut by the location.  In one case no action is necessary while in the other a slight symbolic one is.

 

          If, indeed, this were true, lavud, even in its ultimate extreme formulation - as a halakha which fuses and closes the immediate vicinity of three tefachim would be inconsequential.  hagbaha does not represent an act of domination by lifting the item above the land.  It merely transfers ba'alut by actively fixing the location of the item within the hand of the loke'ach.  There is no denying that the item now rests securely within HIS HAND.

 

          This alternate understanding of hagbaha - that it demonstrates ba'alut by bringing the item into the reshut of his hand must be inspected in light of the gemara's treatment of 'indirect hagbaha'.  The gemara in Chullin (141b) strongly implies that one who bangs the table on which a nest of birds is placed causing the birds to fly in the air, is koneh the birds through hagbaha.  Likewise, the gemara in Kiddushin which discussed the kinyan hagbaha performed through chavilei zemorim (twigs and sticks) is interpreted by Rabenu Meshulam (quoted in Tosafot) in a similar manner.  He depicts the case as one of edible twigs which the loke'ach stretched out in front of the animal to eat (remember we are talking about an elephant).  By forcing the animal to lunge after and leap for the twigs the loke'ach is koneh through hagbaha.  Here we have isolated two instances in which hagbaha is koneh me-kocho' - because you caused the elevation even though you didn't perform it with your hands.  According to our explanation of Rashi this is quite understandable.  If the elevation demonstrates ba'alut by moving the animal in an upwards direction - thereby exerting control - it should make little difference if  you moved the animal physically in a direct manner, or in an indirect way.  However, according to the Rabenu Tam, if hagbaha operates based upon establishing the presence of the item within the reshut of your hand, such indirect hagbaha should be invalid.   Indeed, we would be forced, according to this understanding of the Rabenu Tam, to investigate these two gemarot to determine whether they can be reinterpreted so as not to validate indirect hagbaha.

 

          Tosafot in Bava Kama (29b) adds an interesting twist within Rashi's position.  They maintain that Rashi himself did not require hagbaha of three tefachim in all cases.  In light of the two aforementioned gemarot Rashi discriminated between a direct physical hagbaha performed with the loke'ach's own hands which DOES NOT require three tefachim, and an indirect one, where the loke'ach did not actually lift the item, which is only valid if the item became elevated to a height if three tefachim.  Evidently, Rashi himself accepted these two versions of hagbaha - the one which expresses ba'alut by dominating and exerting control and the one which demonstrates ba'alut by bringing the item into his hand.  When the person lifts with his actual hands he is utilizing the second form of hagbaha - that of bringing into his reshut.  There exists no requirement of three tefachim since the item is located in his hand, regardless, and this is sufficient for kinyan.  Alternatively, in cases where the item is elevated indirectly, we witness the first form of hagbaha - that which seeks to establish ba'alut by exerting CONTROL in the form of lifting.  For this display of control to be meaningful the item must be lifted beyond the three tefach perimeter.

 

SUMMARY:

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          Possibly, the machloket between Rashi and the Rabenu Tam involves their disparate views of hagbaha.  To Rashi it consists of displaying of control and must export the item beyond the three Tefach limit be significant.  To the Rabenu Tam it operates based upon taking the item into your reshut - your hand - and doesn't require any distance - just an action.  Maybe Rashi himself adopted two forms of hagbaha depending upon whether the loke'ach physically lifted it or not.

 

 

Methodological Points:

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1.  The most elementary rule about a machloket runs as follows: Any machloket regarding 'x' as it applies to 'y' is either a machloket regarding 'x' or regarding 'y'.  In this case the machloket of Rashi and Rabenu Tam regarding hagbaha within the three tefach range of lavud either concerns their different opinion regarding lavud or their dispute regarding the nature of hagbaha.  These are always the 'two aspects' of a machloket.  This principle is basic and lies at the core of the gemara questioning "be-mai ke-mifligi".

 

2.  In attempting to uncover the nature of a halakha, oftentimes,  analyzing a parallel halakha helps determine your own halakha. Quite frequently, a particular halakha is merely a derivative of another related one.  In this case our understanding of kinyan 'yad', which everyone agrees to, might shed light upon kinyan hagbaha.  In other words, Rashi and Rabenu Tam might argue regarding how closely related kinyan yad and kinyan hagbaha really are.

 

3.  Whenever a halakha is either 'a' or 'b' the third option is that it might be both depending upon the circumstances.  hagbaha might be bringing the item into your reshut (your hand) when you physically lift it, while it is merely the exertion of control when the hagbaha is done in a non-physical, indirect manner.  Each of these different hagbahot would have different criteria.

 

 

Afterword:

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See Tosafot in Bava Kama (98a) who makes an interesting distinction between two types of hagbaha within the position of the Rabenu Tam.  According to Tosafot when you are actually holding the item the movement can even be in a downward motion.  By contrast if the item is being 'moved' through your force, the movement must be upward or at least in a manner in which the item will never fall to the ground.  Based upon the two models of hagbaha how would one justify the different guidelines governing these two types of hagbaha.

 

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