BAVA BASRA 53 - Dedicated by Mrs. Eta Kloristenfeld in memory of Dr. Shlomo Sprecher a'h, who was Niftar yesterday (17 Adar). Dr. Sprecher was an extraordinary Talmud Chacham, who gave a Dafyomi Shiur for decades.

1) ACQUIRING A HOUSE BY LOCKING THE DOOR

QUESTION: The RASHBAM (DH v'Hashta) states that when the Gemara (52b) rules that an act of locking the door of a house is an effective act of Kinyan, it refers only to when the purchaser of the house affixes a lock to the door. Merely closing the door and locking it with a key does not constitute an act of Kinyan, because when one does such an act merely indicates that he is protecting his friend's property and does not show that he is behaving like the owner of the property.

TOSFOS (52b, DH No'el) questions this ruling of the Rashbam. The Gemara in Gitin (77b) discusses a case in which a dying man wrote a Get to his wife on Erev Shabbos so that when he would die, his wife would not be obligated to do Yibum with his brother. The man did not manage to hand over the Get to his wife before the onset of Shabbos. On Shabbos, the man's condition deteriorated. He was instructed to give to his wife the area in his house where the Get was situated so that the Get would then be considered resting in the wife's domain and she would automatically acquire it. The Kinyan of that part of the house was performed by the wife's act of closing and opening the door. Tosfos argues that it cannot be that the wife had to affix a new lock to the door, because such an act is prohibited mid'Oraisa on Shabbos and the Rabanan would not have permitted it. They permitted her only to do an Isur d'Rabanan on Shabbos of making a Kinyan on the house, in order to prevent the husband's condition from deteriorating further as a result of worrying that his wife would have to perform Yibum.

How does the Rashbam understand the ruling in Gitin? The Gemara there seems to prove that it suffices to lock the door and it is not necessary affix a lock on the door in order to effect a Kinyan.

ANSWER: The PNEI YEHOSHUA in Bava Kama (52b, commenting on Tosfos DH Keivan) answers that the Rashbam agrees that locking the door suffices when it is accompanied with the Kinyan of the seller handing over the keys to the buyer. The act of handing of the keys alone does not suffice, because no act is performed with the property itself. Locking the door alone does not suffice, because it merely suggests that he is doing a Mitzvah of guarding his friend's property and does not show that he is acting in the manner of the owner. When both acts are done together, the handing over of the keys shows that the seller wants to sell his property to the buyer, and the locking of the door shows that the buyer is not merely protecting the seller's property but that he is showing his ownership of the property.

In the case of the Gemara here, the field is being acquired from the estate of a Ger who died with no heirs, and thus there is no one who can hand over the keys to the person acquiring the field. Therefore, locking the door alone does not suffice, and thus the Rashbam explains that one must affix a lock to the door as an act of Kinyan in order to acquire the house. In the case in Gitin, the husband handed over the keys to his wife and she locked and opened the door. Since both acts were done, she was able to make a Kinyan on the property and acquire the place where the Get was situated. (Y. MARCUS)

53b----------------------------------------53b

2) ACQUIRING THE PROPERTY OF A "GER" WHO DIED WITHOUT HEIRS

QUESTION: Rav Amram states that "Rav Sheshes taught us a Halachah and enlightened our eyes by citing proof from a Beraisa." The Halachah is that the act of spreading out sheets on the ground of the property of a Ger who died with no heirs is a sufficient act of Chazakah to make a Kinyan and acquire the property. The proof that he cites is from the Beraisa which states that when a servant puts shoes on his future master or takes them off, or performs certain other personal services, this is considered a Chazakah through which the new master acquires the servant.

The RASHBAM (DH Hetzi'a) explains that even though the act of Kinyan of spreading sheets does not involve making an improvement to the property itself, it nevertheless suffices as an act of Kinyan because the person thereby derives benefit from the property. Similarly, the master derives benefit from the servant attending to him, and therefore that benefit is a valid Kinyan.

The RAMBAM (Hilchos Zechiyah u'Matanah 2:2) states that even though eating the fruit of a field establishes a Chazakah and serves as an act of Kinyan when one buys a field from a fellow Jew, it does not suffice as an act of Kinyan to acquire a field from a Ger who died without heirs. The difference is that when one acquires a field from a fellow Jew, the seller has intention to be Makneh the field. In the case of the field of a deceased Ger, however, there is no owner to be Makneh the field to the person who wants to acquire it, and therefore a stronger act of Kinyan is necessary.

The LECHEM MISHNEH questions the Rambam's ruling from the Gemara here. If there is a difference between the Chazakah required to acquire the property of a Ger and the Chazakah required to acquire the property in a normal transaction when one purchases property from a fellow Jew, how does Rav Sheshes "enlighten our eyes with a proof from the Beraisa" that discusses how a servant is acquired? That Beraisa discusses the acquisition of a servant by virtue of the servant's service to the master, which is comparable to eating the fruits of a field in order to acquire the field from another Jew, which is a valid Kinyan. In both cases, the owner (or the servant himself) has intention to be Makneh the property to the new owner. In contrast, spreading sheets on the ground of the property of a Ger -- which is comparable to eating the fruits of the field of a Ger -- is not a sufficient Kinyan to acquire the field from the Ger, since no one has intention to be Makneh the field to the new owner!

ANSWER: The OR SAME'ACH (Hilchos Zechiyah u'Matanah 2:2) cites the ruling of the Rambam later (2:17) that if a Ger dies without heirs and he leaves as part of his estate servants who are minors, the first person to perform a Chazakah on those minor servants acquires them. The Rambam concludes that "we have already explained the ways of Chazakah by which servants are acquired." He is referring to the Halachah in Hilchos Mechirah (2:2) which is based on the Beraisa cited by the Gemara here which discusses the Kinyan made by having a servant attend to the master. The Rambam's words imply that he maintains that this Chazakah on servants is considered a more effective act of Chazakah than eating the fruits of the field, because he writes that it is a sufficient Kinyan to acquire the minor servants of the Ger. If this Chazakah on servants would be no different from eating fruits of a field, it would not suffice in order to acquire the property of a Ger.

Indeed, the RASHASH states that when the servant attends to the master, it is considered as though the master has received an important usage of the servant, superior to eating fruits of a field (in contrast to the view of the Lechem Mishneh), and this is effective as a Kinyan Chazakah. Similarly, when someone spreads out sheets on the field of a Ger, it is considered as though he is preparing the ground for an important usage for himself, and therefore this act is an effect Chazakah to acquire the field. (Y. MARCUS)

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