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Bava Metzia, 47
BAVA METZIA 47 - Dedicated by Sid and Sylvia Mosenkis of Queens, New York,
in memory of Sylvia's father, Shlomo ben Mordechai Aryeh, who passed away 3
1) HOW A "KINYAN CHALIPIN" IS ACCOMPLISHED
QUESTIONS: According to Levi, a Kinyan Chalipin is accomplished by the
seller giving an object to the buyer. The Gemara explains that the pleasure
that the seller receives as a result of the buyer's acceptance of his object
causes the seller to have full intent (Gemiras Da'as) to transfer ownership
of the second object to the buyer.
(a) The Gemara in Kidushin (7a) teaches that when a woman gives a present to
a man who is an important person ("Adam Chashuv"), the pleasure that she
receives from his acceptance of the present is worth a Shaveh Perutah and
can be Mekadesh the woman. The Gemara in Kidushin clearly says that the
woman can only become married if she gives the present to an "Adam Chashuv"
and not to an ordinary man. The Gemara implies that the woman receives no
pleasure when an ordinary man who is not an "Adam Chashuv" accepts her gift.
Why, then, does Levi consider the seller to be receiving Hana'ah even when
he gives the object of the Chalipin to an ordinary person? (TOSFOS in Gitin
In addition, if the mechanics of Chalipin, according to Levi, are based on
the fact that the seller received Hana'ah by giving an object to the buyer,
then why should the seller not be able to accomplish a Chalipin by receiving
an outright gift from the buyer? If the pleasure received when giving an
object is considered enough to make him be Makneh, then the pleasure of
receiving an object should certainly be enough to make him be Makneh!
(b) According to Rav, why must the seller receive an object? If the buyer is
an "Adam Chashuv," then it should suffice for the seller to give him an
object, since the seller receives pleasure by the buyer's acceptance of the
object! If such a Hana'ah suffices to accomplish a Kidushin, then why should
it not accomplish a Kinyan Chalipin? Even if there is some reason why it
cannot accomplish a Kinyan Chalipin, it should work at least as Kinyan
Kesef, since the buyer is giving the seller this Hana'ah! Therefore, at
least with regard to land (which is acquired with Kesef), it should work
through Kinyan Kesef!
(a) The Rishonim argue whether the Hana'ah of Kinyan Chalipin that Levi
discusses is the same as the Hana'ah that the Gemara in Kidushin discusses.
1. TOSFOS writes that according to Levi, the Chalipin can be accomplished
*only* with the seller's object, and not with the buyer's. Even though the
seller receives Hana'ah when the buyer gives him an object, the Torah states
that Chalipin must be done through the seller giving an object to the buyer.
In a similar manner, the Torah limits Kinyan Chalipin to a Kli and does not
allow coins or objects that are not whole to be used for Chalipin. This is
true even according to Levi, even though the seller receives Hana'ah by
giving such objects just as he receives Hana'ah by giving a Kli.
(b) Regarding whether Rav will allow Chalipin or Kinyan Kesef to be made by
having the seller give an object to a buyer who is an "Adam Chashuv," there
also seems to be a Machlokes Rishonim.
The RITVA here and in Kidushin explains this further. The fact that the
seller must give an object to the buyer in order to make a Kinyan Chalipin
is a Gezeiras ha'Kasuv, because the seller does not really receive a Hana'ah
worth a Perutah from giving something to an ordinary person, as we see from
the Gemara in Kidushin. When the Gemara says that according to Levi, the
seller receives Hana'ah by giving, it is just presenting a partial logical
basis ("Ta'ama Ketzas l'Kra") for the law of the Torah.
The Ritva's intention might be that the Gemara is explaining only why
Chalipin is not comparable to Kinyan Agav according to Levi. The main focus
of the Chalipin is on what the seller receives. However, the Torah limits
how the seller may receive this Hana'ah when making a Kinyan Chalipin; he
may receive this Hana'ah only by giving a Kli.
2. The words of RASHI (DH Mi Savart) imply that Levi holds that the Hana'ah
which the seller receives by giving is what actually accomplishes the
Kinyan, and it as if the seller received an object. It seems from Rashi's
words that Levi would certainly consider it a Kinyan Chalipin when the
*buyer* gives an object to the seller. TOSFOS RABEINU PERETZ cites some
Rishonim who say this explicitly. TOSFOS in Gitin, too, cites this opinion
in the name of Rashi here.
According to Rashi, why should Kinyan Chalipin work when the seller gives an
object to a person who is not an "Adam Chashuv?" The RAN in Kidushin answers
that Kidushin of a woman requires a Shaveh Perutah, because it is
disgraceful for a woman to be Mekudeshes with less than a Shaveh Perutah (as
the Gemara says in Kidushin 3b). A woman only receives Hana'ah worth a
Perutah when she gives an object to an "Adam Chashuv." Chalipin, in
contrast, can be done with a Kli even when the Kli is worth less than a
Shaveh Perutah. This Hana'ah that the seller receives by giving is
considered like a Kli, and therefore it can accomplish a Kinyan even though
it is worth less than a Shaveh Perutah. That is why Chalipin can be done by
giving an object even to a buyer who is not an "Adam Chashuv." (See (b)
below, in the name of the Ketzos ha'Choshen.)
(According to Rashi, it is not clear whether Levi will allow the seller to
give any object for Chalipin, even an object that is not a Kli or not whole,
or a coin, or whether Levi will also agree that there is a Gezeiras ha'Kasuv
which limits the manner in which the seller may receive Hana'ah from the
buyer to giving certain objects.)
The RITVA and Rishonim in Kidushin (7a) infer from RASHI there (DH v'Chen)
that Rav will not consider it a Kinyan if a seller gives an object to a
buyer who is an "Adam Chashuv." The Ritva explains that perhaps Rashi's
reasoning is that giving to an "Adam Chashuv" is considered to provide
enough Hana'ah only when the giving is accomplishing a Kidushin. In such a
case the Hana'ah the woman gets from the recipient's acceptance of the
object combines with the Hana'ah that the recipient is agreeing to be
Mekadesh her, and it therefore accomplishes the Kinyan. In contrast, when a
seller gives an object to a buyer, that Hana'ah alone -- that the buyer
accepts the object -- is not enough to accomplish the Kinyan. Another
possibility is that Rav does not consider the Hana'ah that a person receives
by giving an object to be comparable to the Hana'ah received when a person
gets a Kli, or even Peros. Rather, it is like an object which is not a
complete entity unto itself ("Davar she'Eino Mesuyam"), and that is why it
cannot accomplish a Chalipin. (If the buyer specifies that he wants the
Hana'ah to be Koneh as Kesef, then perhaps it will be Koneh when the item
being bought is land. It is only when the buyer gives the seller Hana'ah in
order to effect Chalipin that the Kinyan will not work.) Levi either
considers the Hana'ah of giving to be like giving a Kli, or he does not
require a Kli or a "Davar Mesuyam" (a complete object) to make a Kinyan
Chalipin, according to Rashi (as we mentioned above). (The KETZOS HA'CHOSHEN
190:3-4 suggests that the Hana'ah of giving can be considered like a Kli
only according to the RIF and others who maintain that anything which is
lasting is in the category of "Kli." According to those who maintain that
Rav Nachman *only* allows Chalipin to be made with a Kli, the Hana'ah of
giving will not be able to effect a Kinyan. Consequently, according to
Rashi -- who does not agree to the Rif (see Insights to 46:2) -- it is clear
why the Hana'ah of giving cannot accomplish a Kinyan Chalipin according to
The Ritva and other Rishonim, however, disagree with Rashi. They write that
the Gemara in Kidushin implies that the Kinyan of the Hana'ah of an "Adam
Chashuv" will also work for monetary transactions. They explain that this
Gemara that says that the buyer must give an object to the seller, according
to Rav, is discussing a buyer who is not an "Adam Chashuv," or when the
seller does not specify that he wants the Hana'ah of the gift being accepted
to accomplish the Kinyan.
It is possible that Rashi in Kidushin is following his opinion here. Rashi
learns that according to Levi, the Hana'ah that the seller receives when he
gives the buyer an object is a full-fledged Hana'ah that is able to
accomplish a Kinyan, because of what the seller received. Levi would agree
that if the buyer gives the seller an object it will also effect a Kinyan.
Hence, Rav Nachman, who argues with Levi, is rejecting the Kinyan of "Adam
Chashuv" with regard to monetary transactions, since that is the Kinyan to
which Levi is referring. It must be that the pleasure of giving cannot
accomplish a monetary exchange, according to Rav.
The Ritva and other Rishonim follow their opinion that the Hana'ah to which
Levi refers is not the same Hana'ah as the Gemara in Kidushin is discussing,
and the Kinyan is actually accomplished only by the Gezeiras ha'Kasuv.
Hence, it cannot be proven from our Gemara that the Hana'ah of "Adam
Chashuv" cannot accomplish a Kinyan Chalipin (or Kinyan Kesef).
2) THE TEXT OF A SHTAR FOR A "KINYAN CHALIPIN"
QUESTION: The Gemara explains the phrase that is normally written in
Shtaros: "b'Mana d'Chasher l'Mikneya Bei." The word "b'Mana" ("with a
utensil") teaches that a Kli must be used, in contrast to the view of Rav
Sheshes who allows Peros to be used for Chalipin. The word "Bei" is written
to show that a coin may not be used.
3) WHY "KESEF" IS NOT "KONEH"
RASHI (45b, DH Mai Ta'ama) writes that a coin is not considered a Kli and,
for that reason, it would not be valid for Kinyan Chalipin according to Rav
Nachman. It is only according to Rav Sheshes that the Gemara needs to
introduce a new reason for why a coin may not be used, because "Da'ata
According to Rashi, why is it necessary to write in the Shtar the word "Bei"
to show that a coin cannot be used for Chalipin, if the word "b'Mana" --
which teaches that only a Kli may be used for Chalipin -- is already written
in the Shtar? A coin is not a Kli, and thus it is already excluded in the
Shtar's text from Chalipin! (TOSFOS 45b, DH In; Tosfos argues with Rashi
based on this question and writes that a coin *is* considered a Kli. See
Insights to 46:2.)
(a) The PNEI YEHOSHUA, RASHASH, and MAHARAM SHIF (45b) explain that although
Rashi does not consider a coin to be a Kli, nevertheless it is more similar
than fruit to a Kli. Hence, if the Shtar only said "b'Mana," we might have
thought that only fruit may not be used, but a coin, which is more similar
to a Kli, may be used. The word "Bei," therefore, was added to teach that
even a coin may not be used.
The Rashash adds that Rashi in Kidushin (28b, DH Basar Shor) makes a similar
point regarding a live ox. Even though it is not considered a Kli, Rashi
writes that it resembles a Kli more than food resembles a Kli.
If this is true, then perhaps Rashi is following his opinion expressed
elsewhere. Rashi (47a) implies that according to Levi there are no
limitations as to what type of object may be used for Kinyan Chalipin (see
previous Insight, answers (a) and (b)). Why, then, is it necessary to write
in a Shtar "l'Mikneya" in order to exclude the opinion of Levi who allows
the Chalipin to be made by the seller giving an object to the buyer? It
already says "b'Mana," which means that a Kli must be given, and the
pleasure which a seller receives by giving something to the buyer is not a
Kli! Obviously, then, this pleasure of giving cannot be used for Chalipin!
The answer must be that although it is not necessary to explicitly state
that the seller cannot give an object to the buyer as Chalipin, nevertheless
it is written clearly in the Shtar so that people not mistakenly assume that
Chalipin may be made in such a manner, and that the object discussed in the
Shtar was transferred through such a Chalipin. This is known as "Shufra
d'Shtara" (Bava Basra 69b) -- writing in a Shtar details that are not
The same may apply with regard to the word "Bei." Although it is written in
the Shtar that a Kli must be used for Chalipin ("b'Mana"), people do not
automatically assume that a coin is not a Kli. Therefore, it is written
explicitly in a Shtar that a coin may not be used for Chalipin, so that no
one will be able to claim that the Chalipin of the object of the Shtar was
done in the wrong manner.
(b) Another answer may be suggested based on the following question. Why are
no words written in the Shtar to show that a "Davar she'Eino Mesuyam" may
not be used for Chalipin? According to Tosfos and those who argue with
Rashi, perhaps this is included in the word "b'Mana," which implies that not
only must a Kli be used, but that a *whole* Kli -- and not a broken Kli --
must be used. Rashi might have learned that "b'Mana" does not exclude a
broken Kli. A broken Kli, or a "Davar she'Eino Mesuyam," is excluded by the
word "Bei." When the Gemara writes that "Bei" excludes a coin, it does not
mean specifically a coin, but it means any object that is not a "Davar
Mesuyam" -- even a Kli, since Rashi (45b, DH Mishum) learns that the reason
a coin may not be used is because it is a "Davar she'Eino Mesuyam."
QUESTION: The Gemara teaches that the reason the Chachamim instituted that
Meshichah must be done on merchandise after money is paid for an object,
according to Rebbi Yochanan, is out of fear that the seller will see a fire
approaching the merchandise and he will not make any effort to put out the
fire, since he does not stand to lose anything if the merchandise is
destroyed. The Gemara continues and says that the Chachamim saw that if the
merchandise is considered to belong to the seller, then he will make great
efforts to save it. If it is not considered to belong to him, he will not
make efforts to save it.
Why does the Gemara find it necessary to emphasize that if the merchandise
is considered to belong to the seller, he will make a great effort to save
it? The main reason why the Chachamim enacted that money does not finalize
the Kinyan is to protect the buyer. If the seller is considered to be the
owner of the merchandise until the buyer takes possession of it and removes
it from the seller's domain, then the buyer will not lose if the merchandise
gets destroyed, whether or not the seller makes an effort to save it. The
Gemara, then, should say simply that if the merchandise belongs to the
seller, the buyer will not lose as a result of the destruction of the
merchandise! (See PNEI YEHOSHUA.)
(a) The words of RASHI (DH Kach Tiknu) imply that the buyer can withdraw
from the sale only while the merchandise is still in existence. After the
merchandise has been destroyed, the buyer may no longer withdraw from the
sale. (See BA'AL HA'ME'OR.)
Accordingly, it is possible for the buyer to lose even after the Chachamim
instituted that money is not Koneh. If fire destroys the merchandise, the
buyer cannot withdraw from the sale and he loses his money. That is why the
Gemara emphasizes that the Takanah that money is not Koneh will solve even
this problem, because it will cause the seller to make great effort and
attempt to save the merchandise from being destroyed in anticipation of a
potential profit. (PNEI YEHOSHUA)
(b) The Pnei Yehoshua suggests further that this wording may have been
chosen in order to explain why the Chachamim instituted that money is not
Koneh according to Rebbi Shimon. Rebbi Shimon rules that the buyer may *not*
withdraw from the sale; only the seller may withdraw. According to Rebbi
Shimon, if the merchandise is destroyed, the buyer certainly will lose. The
reason the Takanah d'Rabanan helps the buyer is because it gives the seller
an incentive to prevent the merchandise from being destroyed.