QUESTION: The Gemara discusses whether the Kinyan of Ma'amad Sheloshtan
works only for transferring ownership of an item that is a Pikadon (a
deposit), or even for a Milveh (a loan of money). Rava says that it is more
logical that it works only for a Pikadon. However, Rav says that it works
even to transfer a Milveh. The Gemara then questions how Ma'amad Sheloshtan
RASHI explains that the Gemara is asking that if Ma'amad Sheloshtan works
for a Milveh, then how does it effect the transfer? The object that is being
transferred is not a specific object, but rather it is a sum of money!
Rashi implies that there is a clear reason why Ma'amad Sheloshtan does work
for a Pikadon, and the Gemara is asking only how it can work for a Milveh.
It seems that in the case of a Pikadon, since there is a specific object
that is being transferred, the Shomer is able to be Makneh that object to
the intended recipient with "Kinyan Chatzer," through the principle of
"Zachim l'Adam she'Lo b'Fanav."
According to Rashi, why would it be necessary to institute Ma'amad
Sheloshtan to effect a transfer of a Pikadon? The ownership should be
transferred through the mechanism of "Zachim l'Adam she'Lo b'Fanav," without
the mechanism of Ma'amad Sheloshtan!
ANSWER: RASHI maintains that with regard to giving a gift (Matanah), when
one says "Ten" ("give [this item to so-and-so]"), it is not considered as
though he is saying "Zechi" ("make an acquisition [on this item on behalf of
so-and-so]"); that is, "Ten Lav k'Zechi." (Only with regard to paying back a
loan is "Ten k'Zechi;" see TOSFOS 11b, DH Kol.) Therefore, if the intended
recipient is not standing there when the benefactor tells the Shomer to give
("Ten") the object to the intended recipient, the intended recipient is not
Koneh the object until it reaches his hands. However, when the intended
recipient is also present (i.e. Ma'amad Sheloshtan), then the Rabanan
instituted that "Ten" should be considered like "Zechi" even for a Matanah.
(See PNEI YEHOSHUA.)
This is why Rashi says that for a Pikadon, the mechanics of Ma'amad
Sheloshtan are easy to understand -- since the Rabanan instituted that "Ten"
is like "Zechi."
TOSFOS (DH Gufa), however, does not accept this approach. Tosfos asks that
it should not have been necessary for the Rabanan to institute Ma'amad
Sheloshtan simply because "Ten" is not like "Zechi." If the giver really
intends for the transfer of the gift to take effect, he should say simply
"Zechi," without Ma'amad Sheloshtan, and thus Ma'amad Sheloshtan is
It is possible that Rashi learns that Ma'amad Sheloshtan was not instituted
for the benefit of the giver, but for the benefit of the recipient, in order
that he receive the gift immediately so that quarrels will be prevented in
case the giver changes his mind. Alternatively, if Ma'amad Sheloshtan
pertains only to a Pikadon, it might not be a rabbinical institution at all,
but rather it was merely that the Rabanan understood that a person's
intentions -- when he instructs the Shomer in the presence of the recipient
to give over the object to the recipient -- is that "Ten" should mean
According to Rashi, Mar Zutra -- who concludes that Ma'amad Sheloshtan is a
"Hilchesa b'Lo Ta'ama" -- rules like Rav that Ma'amad Sheloshtan works for a
Milveh. Those who hold that it works only for a Pikadon maintain that it is
a "Hilchesa b'Ta'ama," a Halachah *with* a reasonable explanation.
Tosfos, however, maintains that even if Ma'amad Sheloshtan works only for a
Pikadon, it is still a "Hilchesa b'Lo Ta'ama." Hence, Ma'amad Sheloshtan
works even if the object being transferred is not in the possession of the
Shomer at the time, and, consequently, he cannot be Zocheh it for the
recipient. In addition, Ma'amad Sheloshtan works even if the Shomer does not
want to give it to the recipient.
The Acharonim ask that according to Tosfos -- who says that the Rabanan
would not have instituted Ma'amad Sheloshtan if any other Kinyan could be
used -- why was it necessary to institute Ma'amad Sheloshtan? The benefactor
could give the object through the mechanism of "Odisa" ("Hoda'ah"), even
against the will of the Shomer, and even if the object is not in the
Shomer's domain. The owner could simply give an admission that the object
belongs to the recipient, and that serves as sufficient evidence that the
object now belongs to the recipient, as we find in the Gemara in Bava Basra
The Acharonim offer a number of answers.
1. The MAHARSHAL suggests that it is not advisable to admit that an object
belongs to someone else when it really does not, because the Torah says
"mi'Devar Sheker Tirchak" (Shemos 23:7). Therefore, the Rabanan instituted
Ma'amad Sheloshtan in order to help a person avoid saying a lie.
2. The MAHARSHA answers that an "Odisa" will only make the object belong to
the recipient when the benefactor made this admission in front of two
witnesses (see RITVA, Bava Metzia 46a; without witnesses, we suspect that
the benefactor is not serious about giving the gift). The Rabanan instituted
Ma'amad Sheloshtan to avoid the need to find two witnesses.
Although these two answers explain the ROSH, who, like Tosfos, says that
Ma'amad Sheloshtan was necessary because no other Kinyan would work,
nevertheless they do not seem to apply to the words of Tosfos, for Tosfos
himself asks according to Rashi that the Rabanan should not have instituted
Ma'amad Sheloshtan because the benefactor could give the item through
"Odisa." This implies that Tosfos holds that "Odisa" *is* a valid,
3. The MAHARAM SHIF and KARNEI RE'EM explain that according to Tosfos,
Ma'amad Sheloshtan not only transfers the ownership of the object, but it
even transfers the obligation of Shemirah for the object, such that the
Shomer must continue to watch the object for the new owner. Hence, if the
Rabanan had not instituted Ma'amad Sheloshtan, then even if the owner would
have transferred ownership through "Odisa," the Shomer could say that he was
watching the object only for the original owner and he could insist on
returning it only to the original owner. The enactment of Ma'amad Sheloshtan
obligates the Shomer to return the object to the new owner as if he had
accepted to watch it for him in the first place.