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Bava Kama, 12

BAVA KAMA 12 - dedicated by Mr. and Mrs. D. Kornfeld in honor of the Bris of their nephew, Yair Leb Mandelbrot.


QUESTION: The Gemara cites a Machlokes Amora'im whether or not a lender of a loan with a Shi'abud can collect Avadim for his loan just like he may collect Karka. The Gemara explains that the Machlokes Amora'im is dependant on whether an Eved is like Karka or like Metaltelin. Other Halachos that are dependant on this question include whether a Pruzbul can take effect on an Eved, and whether Avadim can be acquired through Kinyan Agav with Karka.

Why are the Amora'im debating this point? It seems that the Mishnah later (96b) itself discusses this explicitly. In the Mishnah there, Rebbi Meir and the Chachamim argue whether or not Avadim are like Karka, and whether or not the Halachah of "v'Heshiv Es ha'Gezeilah" applies to stolen Avadim. (Rebbi Meir says that they are not like Karka.) In addition, the Mishnah teaches in numerous places that all of the Halachos that are unique to Karka apply to Avadim, because of a Hekesh that compares Avadim with Karka (for example, there is no Shevu'ah, Ona'ah, or Tashlumei Kefel for Avadim (Bava Metzia 56a)). (TOSFOS DH Ana)

ANSWER: TOSFOS explains that with regard to Halachos that are mid'Oraisa, the Chachamim (and Mishnah) who argue with Rebbi rule that Avadim are comparable to Karka. The Amora'im in our Sugya are discussing Halachos instituted by the Rabanan. Perhaps with regard to Halachos d'Rabanan, Avadim are not like Karka, even according to the Chachamim who argue with Rebbi Meir.

The words of Tosfos are difficult to understand. Why do we not apply the normal rule of "Kol d'Tikun Rabanan k'Ein d'Oraisa Tikun" -- the Rabanan made their enactments similar to the Halachah of the Torah? In addition, according to Tosfos, the Amora'im should argue whether a Shevu'ah d'Rabanan (such as Nishba'in v'Notlin, Shevuos 44b) may be made on Karka, and yet we do not find any such Machlokes!

It seems that Tosfos' intention is to differentiate between the Takanah d'Rabanan of Shi'abud Nechasim and Halachos that are mid'Oraisa, because of the logic of the RASHBAM (Bava Basra 128a, DH Rav Nachman). The Rashbam explains that the reason Shi'abud takes effect only on Karka is because a person is not "Somech Da'as" -- he does not rely on collecting anything other than Karka, since movable items can easily be hidden from him. Therefore, the Rabanan only instituted that a Shi'abud take effect on land. (See also TOSFOS in Yevamos 99a, DH Mani.)

The same logic clearly applies to Pruzbul. The reason Pruzbul can be made only when the Loveh owns land is because land is considered to be collected the moment Beis Din wants to collect it, since the owner cannot hide it from Beis Din's grasp (see Rashi DH Chal Al ha'Karka).

According to Rashi in Gitin (37a), the reason the borrower must own Karka in order for the Pruzbul to take effect is because it is unusual for a Malveh to lend a person money if he has no land, and the Rabanan did not institute Pruzbul in unusual circumstances. According to this reasoning as well, the reason a person normally lends money to someone who has land is because he knows that the land cannot be hidden from him and will be Meshu'abad to him to pay back the loan.

The NIMUKEI YOSEF in the name of the RE'AH (34b of the pages of the Rif) takes this further and explains that this is also the reason the Chachamim instituted that Metaltelin are acquired through a Kinyan Agav with Karka. He explains that because land is immutable, relative to Metaltelin, a person always considers Metaltelin secondary to Karka. Therefore, when he makes a Kinyan on Karka, Metaltelin -- which are secondary to the land -- are automatically acquired together with the land.

Accordingly, Tosfos might be teaching that the Rabanan singled-out land from other possessions for a different reason than why the Torah singled-out land from other possessions. When the Torah gives a unique status or particular Halachah to land it is because the ownership a person can exercise over his land is not as strong as his ownership of Metaltelin, since he cannot take it with him anywhere nor do with it as he pleases. The same applies to Avadim which a person cannot change as he pleases, since the Eved is a living person. That is why, when the Torah singles-out land, it is to teach that a certain Halachah does *not* apply to it as it applies to Metaltelin. However, when the Rabanan single-out land to teach that a certain Rabbinic institution only applies to it and not to Metaltelin, it is because a person feels more confident ("Somech Da'as") with land than with Metaltelin. Hence, the rule that "Kol d'Tikun Rabanan..." obviously will not apply, since the Takanah d'Rabanan here is not k'Ein d'Oraisa, but it follows an entirely different logic.

This answers our second question as well, because if the Rabanan enact a Shevu'ah, they will certainly say that the Shevu'ah cannot be made on land, k'Ein d'Oraisa, since the Torah's logic for singling-out land with regard to Shevu'ah will apply even for a Shevu'ah d'Rabanan. Therefore, "Kol d'Tikun Rabanan k'Ein d'Oraisa Tikun" applies and teaches that a Shevu'ah d'Rabanan cannot be made on land.

The Nimukei Yosef takes this further and asserts that even if Kinyan Agav is mid'Oraisa, we can still explain that the reason Karka is unique with regard to this Halachah d'Oraisa is not for the same reason that Karka is unique with regard to Shevu'ah and other Halachos, but rather it is because a person is "Somech Da'as" more on Karka. Hence, our Sugya might even follow the opinion that "Shibuda d'Oraisa" (which is the Halachic opinion, as the Rashba points out).

QUESTIONS: The Gemara cites a contradiction between Beraisos concerning whether a person can acquire Avadim by making a Chazakah on Karka. The Gemara answers that -- whether Avadim are like Karka or like Metaltelin -- the contradiction between the Beraisos can be answered by explaining that one *can* acquire Avadim with Karka when the Avadim are standing in the land, and one *cannot* acquire Avadim with Karka when the Avadim are not standing there.

The Gemara asks what difference does it make whether or not the Eved is standing in the Karka? Even if the Eved is not standing in the land, he should be acquired through a Kinyan on the Karka (if Avadim are like Metaltelin, then the Eved should be acquired through Kinyan Agav, and if they are like Karka, then the Eved should be acquired through Shmuel's Halachah that once can acquire ten fields through a Chazakah on a single field).

The Gemara answers that the reason the Avadim have to stand in the field in order to be acquired with the field is because they move by themselves (and therefore they are not comparable to other Metaltelin or other Karka). (See Chart.)

(a) It is clear that neither Kinyan Agav nor the Kinyan of Shmuel applies in every case in which a person transfers Karka together with other Metaltelin or Karka. Kinyan Agav applies only when a person specifies that he wants the buyer to acquire the Metaltelin through Kinyan Agav with the Karka (Kidushin 27a). The Halachah of Shmuel applies only when the buyer has already paid for all of the fields that he wants to acquire, and not just for the field on which he performs the Chazakah (Kidushin 27b). Why, then, does the Gemara assume that the Beraisos are discussing a situation in which Kinyan Agav or the Halachah of Shmuel applies? Perhaps the Beraisos are discussing a situation in which those Halachos do not apply. The reason the Eved has to stand on the Karka is in order to acquire him through *Kinyan Chatzer*; if he is in the Chatzer, he can be acquired, and if he is not in the Chatzer, he cannot be acquired. (TOSFOS DH Lamah Li) (b) If the Gemara is not discussing Kinyan Chatzer, then what logic is there to differentiate between whether the Eved is standing in the land or not? If Kinyan Agav, or the Halachah of Shmuel, does not apply to Metaltelin or to movable Karka, then it should make no difference whether or not the Eved is standing in the land!
(a) The Rishonim offer different answers to the first question.
1. TOSFOS explains that an Eved is normally *not* prevented from fleeing when he is inside a field (that is, he is not "Mishtamer l'Da'as Ba'alo"), and therefore the Gemara assumes that the Beraisa is not discussing Kinyan Chatzer, since a normal Chatzer would not work to be Koneh an Eved in such a situation.

2. RABEINU YESHAYAH (in the Shitah Mekubetzes) explains that the Beraisa which says that an Eved *can* be acquired through a Chazakah on Karka is actually a quote from a larger Beraisa, and that larger Beraisa is identical to the Beraisa quoted earlier in all of the cases except in the case of Karka being Koneh an Eved. If so, the Beraisa taught that a person cannot be Koneh Metaltelin through an Eved. If the Beraisa would have been taking into account Kinyan Chatzer, in the case of Karka being Koneh an Eved, then it should not say that Metaltelin cannot be acquired through an Eved, since if the Eved is bound and the Metaltelin are resting on top of him, then the Kinyan of the Eved works for the Metaltelin on top of him as well.

3. With regard to the opinion that an Eved is considered like Karka, we were assuming in our question that a piece of land can be Koneh other Karka (i.e. the Eved) through Kinyan Chatzer. Perhaps, though, this is not true, and an Eved cannot be acquired through Kinyan Chatzer if an Eved is considered like Karka.

Is there a basis in the Rishonim to prove that Karka can be acquired through Kinyan Chatzer?

There indeed are sources in the Rishonim for such a ruling. First, Tosfos and Rabeinu Yeshayah -- who maintain that it is necessary to explain how the Gemara knows that one is not Koneh the Eved through Kinyan Chatzer (even though they are addressing the opinion that an Eved is like Karka) -- clearly were of the opinion that one *can* acquire Karka through Kinyan Chatzer. (The OR SAME'ACH, Hilchos Gerushin 1:6, cites a source for this ruling from the Gemara in Bava Basra 87a, which says that one is Koneh what grows in the land through Kinyan Chatzer.)

The NIMUKEI YOSEF (BB 5a) rules that if a person has a wall built on his friend's land and he sells that wall to the owner of the land, the buyer acquires the wall through Kinyan Chatzer (even though the wall is Mechubar to the ground and is considered like Karka). Furthermore, the RASHBA in Gitin (22b) writes that the verse had to specifically teach that one may not write a Get on Karka, for without the verse a Get written on Karka would have been valid. However, the Rashba himself (77b) maintains that a Get can be delivered to the woman only through Kinyan Chatzer (or Kinyan Yad, placing it in the hand of the woman, where the hand is like her Chatzer; see Insights to Gitin there). It can be inferred from the Rashba that it is possible to transfer something that is attached to the ground (and has a status of Karka) to the woman through Kinyan Chatzer.

However, the NESIVOS HA'MISHPAT (241:3) cites proof from a Gemara in Gitin to the contrary. The Gemara in Gitin (22a) teaches that if one person owns a flower pot and another person owns the seeds inside of it, and he sells the seeds to the owner of the flower pot, the owner of the flower pot must make a Chazakah on the seeds to be Koneh them, and he is not Koneh them through Chatzer just because the seeds are in his flower pot. If Chatzer would work on Karka, then the owner of the flower pot should be Koneh the seeds through Kinyan Chatzer!

The OR SAME'ACH answers that a flower pot cannot be considered a Chatzer which is supporting the seeds inside of it, because what is inside the flower pot -- which has holes in it (it is an Atitz Nakuv) -- is receiving its nourishment from the ground, and thus it is considered to be attached to the ground underneath the pot. Hence, the pot is merely like a towel wrapped around a plant which is attached to the ground.


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