Torah Community Connections

Week 88 - Friday - 3 August 2001

KIDDUSHIN: CHAPTER 1: MISHNA 4

A large animal is acquired by mesirah, and a small one by hagbahah, the words of Rabbi Meir and Rabbi Eleazar. And the Sages say, a small animal is acquired by meshikhah.

Kehati

The mishnah, in discussing the acquisition of animals, cites three ways of acquiring "movable property" (which includes animals): 1) hagbahah, lifting; 2) meshikhah, pulling; 3) mesirah, transferring. Hagbahah is the purchaser's act of "lifting" an object three tefahs (handbreadths) with the intent of acquiring it; (according to Tosafot, one tefah is sufficient). Meshikhah is the purchaser's act of "pulling" an object from place to place; with an animal, however, if one "calls it and it comes, or hits it with a staff and it runs before him, as soon as it moves one hind and front foot, he acquires it" (Gemara, Kidd. 22b). Mesirah is the seller's act of "transferring" an object to the purchaser; in the case of an animal by its bit, its mane, or its saddle. Others maintain that there is no need for the animal to be physically transferred from hand to hand, but that it is sufficient for the purchaser merely to take hold of the animal at the direction of the seller. Any object which is commonly acquired by hagbahah can only be acquired by hagbahah, and not by meshikhah or mesirah. Objects for which hagbahah is not practical, however, can also be acquired by meshikhah and objects for which even meshikhah is not practical, such as a ship or a heavy chest are acquired by mesirah. These methods of acquisition also differ in regard to the place in which they are carried out: hagbahah effects acquisition in every place; meshikhah is effective only in a sirntah, i.e., a corner adjacent to the public domain, or in a courtyard owned jointly by the buyer and seller; mesirah can be used for acquisition only in the public domain or in a courtyard not owned by either one.

A large animal - e.g., a cow, is acquired by mesirah - its owners transfer it to the purchaser by its bit or its mane, as we explained above, since hagbahah and meshikhah are not practical in the case of a large animal which is difficult to lift or pull, and a small one - a small animal, such as a sheep or a goat, is acquired - by hagbahah - since people usually lift these animals up, but it cannot be acquired by meshikhah or mesirah as we explained, since any object which is commonly acquired by hagbahah can only be acquired by hagbahah -

These are the words of Rabbi Meir and Rabbi Eleazar. And the Sages say, a small animal is acquired by meshikhah - since it digs its nails into the ground and it is difficult to lift it up, the Sages were lenient in their ruling and permitted its acquisition, even with meshikhah. The law is that meshikhah and certainly hagbahah are effective in acquiring large and small animals.

KIDDUSHIN: CHAPTER 1: MISHNAH 5

Property, which has security, may be acquired with money, and with a document, and by hazakah; and that which does not have security is acquired only by meshikhah. Property, which does not have security, may be acquired with property, which has security with money, and with a document, and by hazakah. And property, which does not have security, imposes the taking of an oath upon property which has security.

Kehati

This mishnah deals with the laws governing acquisition of immovable and movable property. Land is referred to in the Mishnah as "property which has security," because it can be used as "security" for the payment of its owner's debts, and if the borrower sells his land and has no other means of payment, the lender may collect his debt from the purchaser of the land. However, if the borrower sells movable property, the lender may not collect from it, and it is therefore called "property which does not have security."

Property which has security - land, as we explained may be acquired with money - which the purchaser gives the seller with the intent of acquiring the land. Even if he gives only a coin of small denomination it acquires if it is given with this intent. This ruling applies only in communities where it is not customary to write documents of sale; in a community where it is customary to write documents of sale, however, he cannot acquire until he writes a document (Gemara); and - or - with a document - which the seller writes for the purchaser, stating, "My field is sold to you." The Gemara explains that a document effects the acquisition of property only when the property is given as a present. In the case of a sale, however, the purchaser does not take possession until he pays money. If, however, a person sells his field because it is deteriorated, the purchaser can acquire it with a document since the seller is anxious to part with the property and is willing to have the buyer take possession right away. Acquisition with money and document is learned in the Gemara from the verse, "Men may buy fields for money, and subscribe the deeds, and seal them" (Jer. 32:44); and - or - by hazakah - the purchaser "takes hold" of the land by locking its gates, fencing it off, or working in it. This is learned from the verse, "You shall possess it, and dwell therein" (Deut. 11:31) - How is your possession established? By dwelling in it;

and that which does not have security - movable property, is acquired only by meshikhah - but not with money, document, or hazakah; they can also he acquired by hagbahah or mesirah, as was explained in the previous mishnah. The mishna only mentions meshikhah since it is the method most commonly used to acquire movable property (Tosefot Yom Tov). Meshikhah is learned from the verse, "or buy of your neighbor's hand" (Lev. 25:14) - an object which is moved from hand to hand. According to Rabbi Yohanan who maintains that the Torah also permits the acquisition of movable property with money, the law in our mishnah which limits acquisition to meshikhah is a Rabbinic decree (see B.M 47b).

Property which does not have security may be acquired with property which has security with money, and with a document, and by hazakah -one who sells his friend both land and movable property may tell him, "Acquire the movable property incidental to the land" - and as soon as the purchaser acquires the land with one of the three methods of land acquisition, money, a document, or hazakah, he acquires the movable property together with it. This is learned from the verse, "And their father gave them great gifts of silver, and of gold, and of precious things, with fortified cities in Judah" (II Chr. 21:3).

And property which does not have security imposes the taking of an oath upon property which has security - even though an oath is not normally taken in proceedings involving land by itself (Mishnah, Shev. 6:5), when both movable property and land are in dispute and the law requires an oath on the movable property, an oath for the land is also added (see Sot. 2:5 for details of gilgul shevu'ah).

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