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Bava Basra, 54

BAVA BASRA 54 - in memory of Harry Bernard Zuckerman, Baruch Hersh ben Yitzchak (and Miryam Toba), by his children and sons-in-law.


QUESTION: Shmuel states that one who prunes the branches of a date-palm (which is Hefker) with intention to help the growth of the tree acquires, through his action, the tree. One who prunes the branches in order to give them to his animals to eat does *not* acquire the tree.

Why, though, does he not acquire the tree even when he cuts the branches in order to give them to his animals? He is still doing something that is beneficial to the tree! (RISHONIM)


(a) The RASHBAM explains that even though the person intends to acquire the tree by cutting its branches, his intention in cutting the branches is not to benefit the *tree* (but rather to feed his animals), and thus his action does not work to acquire the tree. In order for an act to effect a Kinyan, both conditions are necessary -- one must intend to acquire the tree with one's action, *and* one must intend to benefit the tree with one's action.

The ROSH adds that even if the person says afterwards that he specifically intended to benefit the tree, his action is still not effective, because it also must be clear from his action (and not just his words) that he intended to benefit the tree, while, in this case, his action indicates that he cut the branches only for his animals.

(We find a similar concept in the MAGID MISHNAH (Hilchos Shabbos 10:17), who writes that one does not transgress the Melachah on Shabbos of "Makeh b'Patish" by doing an act to a utensil which he does not consider to be the completion of the utensil. See Insights to Shabbos 107:3:b.)

(b) TOSFOS (DH A'DA'ASA) answers that even though the person's act of pruning the tree is beneficial to the tree, his act is not an effective Kinyan to acquire the tree because he does not intend to acquire it. Tosfos understands that when the Gemara says that he pruned the tree with intention to feed the branches to his animals, it means that he also did *not* intend to acquire the tree. Had he intended to acquire the tree with his action, his action *would* have been an effective Kinyan, even though he did not intend to benefit the tree (in contrast to the view of the Rashbam).

(c) The RAMAH (end of #233) explains that the reason why the person does not acquire the tree when he prunes it in order to feed the branches to his animals, even though the tree still benefits, is as follows. The Ramah maintains, like Tosfos, that the person's act in itself is a valid act to acquire the tree. Even if he did not intend to benefit the tree, the act would be a valid Kinyan since the tree nevertheless benefits. The reason why he does not acquire the tree with his act of pruning is because he intended to acquire the tree with an act of *cutting off branches* (for his personal benefit), and not with an act of *helping the tree to grow* (for the benefit of the tree). He seems to mean that when a person has intention to perform a Kinyan with an act that does *not* constitute a valid form of Kinyan, and, at the same time, he unintentionally performs an act that *does* constitute a valid form of Kinyan, he is not Koneh the object; the act which is a valid form of Kinyan is not effective, because he did not intend to be Koneh with that act.


QUESTION: Rav Yehudah in the name of Shmuel rules that when a Jew buys land from a Nochri, the Nochri removes his ownership from the land at the moment that he receives payment, but the Jew does not intend to acquire the land until he receives a Shtar from the Nochri. Consequently, in the interim the land is considered Hefker, and if another Jew comes and performs an act of Kinyan on the land, he acquires it (regarding whether he must pay the first Jew, see RASHBAM (DH Harei Hen k'Midbar), RAMBAN, RITVA, and ROSH here).

It is clear from the RASHBAM and other Rishonim that although a Kinyan Kesef is an effective Kinyan when buying land from a Nochri, the Jew does not have intention to acquire the land until he receives a Shtar, and therefore the land remains Hefker. However, if the Jew does not have intention to acquire the land with the giving of the money, then even when he buys land from another Jew, the land should be Hefker until he receives a Shtar, and if another person comes and performs an act of Kinyan on the land he should acquire it! Why, then, was this Halachah stated specifically with regard to buying land from a Nochri?


(a) The RITVA asks a different question: how is it possible for another Jew to make a Kinyan on the land that the Nochri sold to the first Jew? The Nochri did not make the land Hefker to the entire world -- he made it Hefker only for the Jew who bought it from him (see end of Bava Kama 116a)! That is, he only relinquished his ownership (upon receipt of payment) so that the buyer could come and be Koneh the land, and not for anyone else to be Koneh the land! Why, then, can another Jew be Koneh it?

The Ritva answers that once he has received his money, the Nochri does not care about the welfare of the buyer. The Nochri is interested only in his own gain and benefit. Hence, once the Nochri receives his money, he removes his ownership from the land completely, making it Hefker to all, and he does not care whether the true buyer comes and takes it, or whether someone else comes and takes it.

In contrast, when a Jew receives money for the sale of his land, he makes it Hefker only to the person who bought it, so that the buyer should not suffer a loss. Therefore, no other Jew can come and make a Kinyan on the land.

(b) The CHASAM SOFER writes that the difference between buying land from a Nochri and buying land from a Jew is as follows. The Halachah is that, mid'Oraisa, a Jew can acquire land from another Jew through either a Kinyan Kesef (by giving money) or a Kinyan Shtar. When the buyer does not intend to take possession of the land by giving money, the seller, too, does not intend to be Makneh the land with the receipt of the money, but rather only with his giving of a Shtar. In contrast, a Nochri has no Kinyan Shtar (as Tosfos writes), and thus he always intends to relinquish his ownership of the field through the receipt of the money. (See also NESIVOS HA'MISHPAT 194:2.)

OPINIONS: Shmuel teaches the well-known rule of "Dina d'Malchusa Dina" -- the law of the country in which a person lives is legally binding. What is the source for this principle?
(a) The RASHBAM here writes that the laws of the land are binding because "all of the citizens of the country accept upon themselves willingly the statutes of the governing body and its laws." The communal acceptance of those laws creates a binding obligation on every individual (similar to the way a Minhag of a place obligates everyone in that place to abide by that Minhag).

(b) The RAN in Nedarim (28a) writes in the name of TOSFOS that the principle of "Dina d'Malchusa Dina" is based on the reasoning that one must follow the laws made by the governing body of the country because that sovereign is entitled to demand any payment that he wants as compensation for allowing people to live in the land under his jurisdiction, as he has the legal right to expel from his land anyone he chooses. Accordingly, "Dina d'Malchusa Dina" applies only to laws made by non-Jewish kings in their kingdoms. "Dina d'Malchusa Dina" does not apply to laws made by a Jewish king, though, who rules over Eretz Yisrael (and follows the Torah), because no Jewish king has the right to expel a person from Eretz Yisrael, since every Jew is entitled by the Torah to live in Eretz Yisrael and the king cannot legally deny any Jew that right. Consequently, a Jewish king may not demand payment from the people for permission to live in Eretz Yisrael, because it is not the king who is granting them permission to live there. (See Insights to Nedarim 28:2.)

According to this reasoning, the rule of "Dina d'Malchusa Dina" *would* apply to the laws of a Jewish king ruling over a country *outside* of Eretz Yisrael. Indeed, this is what the RASHBA (Teshuvos 1:637) writes (see, however, NIMUKEI YOSEF, beginning of Nedarim 28a).

The CHASAM SOFER (cited by OHEL TORAH) writes that the Ran gives this reason only to explain why "Dina d'Malchusa Dina" applies to laws of taxation, which a king levies against the will of his constituents. The Ran agrees, though, with the Rashbam that the other laws (such as the case in our Gemara) of a country are binding because everyone accepts them upon themselves (and, accordingly, "Dina d'Malchusa Dina" applies to the laws of a Jewish king in Eretz Yisrael as well).

(c) The DEVAR AVRAHAM (1:1) cites the ALIYOS D'RABEINU YONAH in our Sugya who says that the principle of "Dina d'Malchusa Dina" is a form of "Hefker Beis Din Hefker." He maintains that the principle of "Hefker Beis Din Hefker" is not specifically a law that applies to Beis Din, but that it applies to Beis Din because of the authority and power that Beis Din has to issue rulings on monetary matters. Accordingly, it applies to any authority figure that has such power (as is learned from the verse, "[A proclamation was issued in Yehudah and Yerushalayim to all of the people of the exile to assemble in Yerushalayim:] And that anyone who would not come within three days, in accordance with the counsel of the officers and the elders, all his property would be destroyed..." (Ezra 10:7-8). This rule of "Hefker Beis Din Hefker" is the basis for the rule of "Dina d'Malchusa Dina." (See Insights to Gitin 36:2, where we discuss the view of Rabeinu Yonah at length.)

(d) According to our explanation of RASHI in Gitin (9b; see Insights there), Rashi proposes that the source for the law of "Dina d'Malchusa Dina" is the Torah's obligation for B'nei No'ach to set up a system of courts and law. Rashi explains that this commandment not only obligates the Nochrim to see to it that justice is administered for criminals, but it also grants them the power to set up a system of laws which establishes guidelines regarding monetary matters, such as what constitutes an acquisition. This is what the Chachamim refer to when they say "Dina d'Malchusa Dina" -- the system of the courts of Nochrim that establishes legal guidelines in monetary matters which is binding on all of the residents of that country, mid'Oraisa. (See Dibros Moshe to Gitin there.) This source for "Dina d'Malchusa Dina" gives Nochrim the right to enact any mandate or statute pertaining to anything that affects the constituents of the country in any way. They cannot set up guidelines regarding what is considered Kidushin and Gerushin, since Kidushin cannot be effected by Nochrim; since Kidushin has no applicability to Nochrim, the Torah does not command them -- nor give them the right -- to establish guidelines for it. (According to this explanation, it could be that "Dina d'Malchusa Dina" does *not* apply to a Jewish king, whether in Eretz Yisrael or in any other country, since a Jewish king is not bound by the Mitzvos of B'nei No'ach, but rather by all of the Mitzvos of the Torah. This might be the intention of the NIMUKEI YOSEF in Nedarim (28a) cited above.)

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