1) ACQUIRING A "SHTAR" THROUGH "MESIRAH"
QUESTION: The Tana'im agree that a Shtar can be acquired through Mesirah. They disagree about whether Mesirah alone accomplishes the Kinyan, or whether the Mesirah must be accompanied by the writing of an additional Shtar in order to show that the buyer is acquiring not only the paper but also the debt that is written in it.
The RASHBAM (76b, DH Lo Kashya) writes that whenever an object can be acquired through Meshichah it cannot be acquired through Mesirah. Meshichah is considered a stronger sign of ownership, and therefore it is not the common practice to transfer the ownership of an object through Mesirah when it can be transferred through Meshichah. Since it is not the common practice, Mesirah does not work.
The Rishonim (TOSFOS DH Sefinah) cite a source for this from the Gemara later (86a) which makes a similar statement with regard to Hagbahah. The Gemara there says that any object that can be lifted cannot be acquired through Meshichah, because common practice is to transfer its ownership through Hagbahah, which is a stronger sign of ownership than Meshichah. How, then, can a person acquire a Shtar through Mesirah? Since it is possible to do Meshichah to the Shtar (such as in a Simta, which is what the Beraisa is discussing), it should be necessary to perform Meshichah. Moreover, according to the Gemara later (86a), even Meshichah should not suffice; it should be necessary to perform Hagbahah in order to acquire the Shtar. (RAMBAN and Rishonim)
(a) RABEINU YONAH writes that when the Beraisa uses the word "Mesirah" it refers to what normally is called "Hagbahah," and not to Mesirah. That is, the buyer must receive the Shtar and hold it above the ground such that he acquires it through an act of Hagbahah. Why does the Beraisa use the word "Mesirah" for such an act? The answer is that the act of Hagbahah normally means that the buyer lifts up the object from wherever it happens to be resting, even from the ground. A Shtar, however, is never placed on the ground, but rather it is transferred directly from hand to hand. Since it is not common to ask the buyer to lift up the Shtar from the ground, that form of Hagbahah will not work to acquire the Shtar. Rather, a Hagbahah must be performed through a transfer of the Shtar from the hand of the seller to the hand of the buyer. That is why the Beraisa describes the Hagbahah that is done to a Shtar as "Mesirah."
Tosfos (DH Iy) explains the Gemara in a similar manner. When the Gemara says that a Shtar can be acquired with Mesirah, the Gemara means that besides the Meshichah that is done to the Shtar (or Hagbahah, according to the Gemara on 86a that requires Hagbahah for objects that can be lifted; see Tosfos 86a, DH Aval), there is the addition stipulation that the Shtar must be handed over by the seller (Mesirah). Tosfos explains, however, that the reason it must be handed over is not related to the common manner of transferring ownership of a Shtar, but rather it is in order to show that the buyer is acquiring not only the paper but the debt that is written in it, which originally obligated the Shtar's author to the one who is now selling the Shtar.
This seems to be the intention of the Rashbam as well (75b, DH v'Osiyos, and 76a, DH v'Osiyos b'Mesirah). The Rashbam describes the act of Mesirah that is done with a Shtar as the delivery of the Shtar from the hand of the seller to the hand of the buyer, which is done in order to show that the debt, and not just the paper, is being transferred.
The Acharonim use this explanation to answer a problematic point in the Rashbam. The Gemara initially assumed that a Shtar is acquired through Meshichah. The Rashbam (75b, DH Osiyos, and 76a, DH uv'Shtar), however, writes that even at that point the Gemara understood that a Shtar is transferred through Mesirah. Why does the Rashbam mention Mesirah if the Beraisa says "Meshichah"? (See MAHARSHA and RASHASH to 75b.)
The PNEI SHLOMO and the NIMUKEI HA'GRIV (on the Maharsha) explain that the Rashbam understands, like Tosfos, that even according to the Gemara's conclusion the Mesirah is done together with Meshichah. Therefore, the Rashbam explains that even when the Gemara originally used the word "Meshichah," it meant "Meshichah with Mesirah."
The factor that forced the Rashbam to learn this way in the Gemara's original assumption is the question of Tosfos (DH Chasurei): Why does the Gemara add the word "Mesirah" into the Beraisa, if the Beraisa mentions only "Meshichah"? Instead of assuming that the Chachamim require Mesirah and Rebbi Nasan requires Meshichah for a Shtar, it should have said that they both require Meshichah for a Shtar. The answer to this question (as the Rashba writes according to Rabeinu Yonah) is that the Gemara knew that neither Mesirah alone nor Meshichah alone can acquire a Shtar. (Meshichah does not show the transfer of a debt; only Mesirah shows the transfer of a debt. On the other hand, Mesirah does not work to acquire Metaltelin that can be acquired through Meshichah or Hagbahah.) Therefore, the Gemara used the terms "Mesirah" and "Meshichah" interchangeably with regard to the acquisition of a Shtar.
(b) The RAMBAN, RASHBA, and RAN explain that the rule that Hagbahah or Meshichah is preferable to Mesirah does not apply to a Shtar. The reason for this is that the act of Hagbahah or Meshichah is performed only with the paper, but not with the debt which the paper represents. With regard to the debt, it makes no difference what kind of act is done to the Shtar; even Mesirah can acquire the debt in the Shtar, and certainly Meshichah and Hagbahah can work. It seems that even according to these Rishonim, if the Shtar is handed over with Mesirah, the buyer acquires the paper as well, for the purpose of proving that he now owns the debt (as the wording of the Ran implies; see footnote 21 in He'oros to the Chidushei ha'Ran). The Kinyan of the Shtar will be accomplished by acquiring the debt (Shibud), since the Shtar was written to describe the Shibud and attest to the ownership of the Shibud ("Afsera d'Shibud"; see Bava Basra 53a and Kidushin 27a). Tosfos, however, understands that the acquisition of a Shibud occurs in the opposite manner. The buyer first must acquire the paper which proves that there is a Shibud, and only afterwards does he acquire the Shibud.
2) "MESHICHAH" FROM "RESHUS HA'RABIM" INTO A "SIMTA"
QUESTION: The Chachamim state that when a person wants to acquire a boat which is in Reshus ha'Rabim, he can acquire it only through an act of Meshichah. The Gemara asks that Meshichah is not effective in Reshus ha'Rabim. The Gemara answers that the Chachamim mean that the boat cannot be acquired until the buyer pulls the boat from Reshus ha'Rabim into a Simta.
Why should pulling the boat into a Simta work to acquire the boat? The Gemara earlier (75b) quotes Shmuel (whose opinion is the Halachah) who says that it does not suffice to pull a boat only a small amount, but rather one must pull the boat completely out of the place in which it was standing (such that the stern of the boat is now where the bow of the boat was). Consequently, it should be necessary to pull the boat into a Simta and to continue pulling it until it has completely left its original place in the Simta. Even according to Rav, it should be necessary to pull the boat at least a small amount in the Simta. Why does the Gemara say that it suffices to pull it into the Simta and no more?
(a) The RAMBAN (Kesuvos 31a, cited by the MAGID MISHNEH, Hilchos Mechirah 4:4) explains that although according to Shmuel it is necessary to pull a boat its entire length, it is not necessary to do so in a Reshus in which Meshichah works to acquire it. The only concern is that when the Meshichah is completed, the boat should be resting entirely in a Reshus in which Meshichah can work to be Koneh. Therefore, when one pulls the boat from Reshus ha'Rabim to a Simta, the buyer acquires the boat as soon as the entire boat enters the Simta.
The logic for this ruling is as follows. Meshichah works in a manner similar to the Kinyan d'Oraisa of Chatzer. It works to acquire the object by placing the object into the buyer's domain. If the seller places his object in a Simta or in a jointly-owned Chatzer, the area beneath the object becomes the seller's for his momentary use as long as the object is there. Therefore, that area cannot be considered the Chatzer of the buyer to acquire the object for him, and he must take it out of that area. When the buyer pulls the object to another area in the Simta or in the jointly-owned Chatzer, the new area beneath the object now becomes the buyer's property, and thus it can be Koneh the object for him, similar to the manner in which his Chatzer is Koneh for him. In contrast, in Reshus ha'Rabim Meshichah does not work, since nobody has permission to park an object in an area which is designated as a public thoroughfare. Therefore, when a buyer pulls an object to a place in Reshus ha'Rabim, the area beneath the object does not become the buyer's for the sake of keeping the object there and acquiring it. When the buyer pulls the object from Reshus ha'Rabim into a Simta, the area in the Simta on which the object now rests becomes his and can acquire the object for him, and he does not need to pull the object any further in the Simta.
(b) The RAMBAM (Hilchos Mechirah 4:4, Perush ha'Mishnayos Bava Basra 5:7) writes that if an object is in Reshus ha'Rabim and the buyer pulls it with Meshichah into Reshus ha'Yachid or into a Simta, as soon as part of the object leaves Reshus ha'Rabim the buyer acquires it. The MAGID MISHNEH explains that the Rambam also maintains that the Meshichah may be performed in Reshus ha'Rabim as long as the object ends up in Reshus ha'Yachid.
However, the Rambam is adding that even if only part of the object ends up in Reshus ha'Yachid or in a Simta, the Meshichah acquires the object for the buyer. Why is this? The Gemara in Bava Metzia (8a) relates that if a person lifts up part of an object of Hefker (such as a cloak) in his hands and the other part is still resting on the ground, he does not acquire the object, since part of it is still on the ground. Similarly, the VILNA GA'ON (Bi'ur ha'Gra to Shulchan Aruch 198:14) proves from the laws of Shabbos that the entire object must reach the Reshus ha'Yachid in order for the buyer to acquire it; the Halachah is that dragging an object partially into Reshus ha'Rabim from Reshus ha'Yachid on Shabbos does not constitute the Melachah of Hotza'ah (Shabbos 90b). Why, then, does the Rambam write that pulling part of an object into a Reshus ha'Yachid suffices to acquire it?
Perhaps the Rambam maintains that the second half of an object which is outside of the Reshus of the buyer prevents the Kinyan from working only when the Reshus in which that second half is resting is the seller's domain from which the buyer is taking the object. The fact that the object is resting in the seller's Reshus contradicts the Kinyan of the buyer's Chatzer. Therefore, if the second half is in Reshus ha'Rabim, it does not contradict the Kinyan of the buyer, and the Chatzer beneath part of the object is Koneh the object for him. This is the way the SHA'AR HA'MELECH (Hilchos Geneivah 3:2) understands the Rambam here (he infers this point from the wording of the Rambam).
If this is indeed the view of the Rambam, the Rambam's ruling is no longer problematic. The Gemara in Bava Metzia (8a) is discussing an object acquired from Hefker. Since the Reshus ha'Rabim is the Reshus of Hefker in which the object was originally resting, the fact that part of the cloak is still resting in Reshus ha'Rabim is a contradiction to the Kinyan. In the laws of Shabbos, resting in Reshus ha'Rabim is a contradiction to being in Reshus ha'Yachid with regard to the Melachah of Hotza'ah. Therefore, an object is not considered "resting" (with "Hanachah") in one of the two Reshuyos unless it is entirely moved into that Reshus. (See also Insights to Gitin 78:3:a.)
(c) The RA'AVAD (Hilchos Mechirah 4:4) seems to have a third approach. The Ra'avad maintains that the Meshichah of the entire length of the object begins only when the object enters the Simta. However, it is not necessary for the entire object to enter the Simta in order to begin the Meshichah. As soon as part of the object enters the Simta, the Meshichah begins. Therefore, once the entire object has entered the Simta, a Meshichah has been performed with the entire length of the object.
The Ra'avad adds that if an animal is pulled such that it puts a foreleg and a hind leg into a Simta, it is considered a Meshichah and the buyer acquires it, even though the other two legs are still in Reshus ha'Rabim. The Ra'avad also understands that, in theory, a Simta can acquire an object for the buyer even when only part of the object is resting in the Simta. However, he is stringent in that he requires that the Meshichah must start only from when the object enters the Simta (and thus, practically, the object must be moved its entire length while in the Simta).
Some explain that the Rambam agrees with the Ra'avad, except that he maintains that any object other than a boat does not need to be pulled its entire length. It suffices to drag it a small amount (as the ROSH (5:2) writes). The reason why the Rambam maintains that bringing part of an object into a Simta will be Koneh the object is that the object has moved a small amount from the time that part of it entered the Simta. It is not necessary to drag it its entire length in the Simta. (See Ra'avad there, and RABEINU YERUCHAM 10:1.)