DOES ONE ACQUIRE WITH A RENTED CHATZER? [Kinyan: Chatzer :rented]
56b (R. Zeira) Question: Does Ona'ah apply to rental?
The verse of Ona'ah discusses a sale, not rental. Or, perhaps we do not distinguish!
Answer (Abaye): The verse does not specify a permanent sale. Rental is a temporary sale (so Ona'ah applies to it).
102a (Mishnah): The dung belongs to Reuven (who owns the house). Shimon (the renter) gets only (ashes) from the oven.
Question: If Shimon rents the Chatzer and the dung is from his own animals, why does Reuven get it? If Reuven did not rent out the Chatzer and the dung is from his animals, obviously he gets it!
Answer: The case is, it is Reuven's Chatzer, and dung from others' animals.
Kidushin 26b (R. Elazar): A case occurred in which a man wanted to give a large gift of Metaltelim. They told him that the only solution is to give them with land. He bought a small plot of land and said 'the northern part is given to Ploni, and with it 100 flock and 100 barrels.' He died. The gift was valid.
(Mishnah): R. Gamliel and Chachamim were on a boat. He said 'the tithe (Ma'aser Rishon) that I will measure off later is given to R. Yehoshua, and I rent to him the area it rests on. Another tithe (Ma'aser Ani) that I will measure off later is given to R. Akiva, to acquire it on behalf of the poor. I rent to him its place.
This does not prove that the Metaltelim must be on the land given. R. Gamliel rented the land to them so they could leave the Peros there indefinitely.
Avodah Zarah 15a (R. Yitzchak brei d'Rav Mesharshiya): Rental does not acquire!
(Mishnah): If a Kohen rents a cow from a Yisrael, the Kohen must feed it, but he may not feed it vetch (fodder that people can eat) of Terumah.
If rental acquired, the Kohen would own the cow, and he would be allowed to feed it vetch of Terumah!
Gitin 77b: Rava): The moment a Get is put in a woman's hand, she is divorced and simultaneously gets back her Yad (power of acquisition). Similarly, the moment a Get enters her yard, she is divorced and they are hers.
(Rav Ashi): A husband does not own his wife's hands! Really, Rava asked about the opinion (Kidushin 22b) that a slave can himself receive a Get of freedom from his master.
A man did not expect to survive until after Shabbos; he wrote a Get to his wife just before Shabbos. Rava said that he should give to her, for a gift, the place where the Get is resting. She should close the door there (on Shabbos) to acquire it through Chazakah.
Rav Ilish: How will it help her to acquire the area? What a wife acquires belongs to her husband!
Rava was embarrassed. Later, it was found that she was only an Arusah. A husband gets what his wife acquires only after Nisu'in.
(Rava): Even a Nesu'ah acquires the place at the moment of divorce!
Rif and Rosh (Bava Metzia 59a and 8:28): The owner of the house gets the dung, i.e. when he did not rent out the Chatzer. The dung is from others' animals.
Nimukei Yosef (32a DH Gemara): The Ran says that rental is a temporary sale regarding usage of the item. The item itself still belongs to the owner.
Rambam (Hilchos Sechirus 6:5): Dung in a Chatzer from the renter's animals belongs to the renter. Dung of others' animals belongs to the owner. One's yard acquires for him, even if it is rented out.
Rebuttal (Ra'avad): The Gemara connotes that had he rented it out his Chatzer, the renter would get it, just like a buyer who rents the premises acquires immediately.
Question (Beis Yosef CM 313 DH veha'Rambam): The Rambam is difficult. Rental is like a sale for that period of time!
Answer #1 (Toras Chaim Bava Metzia 102a DH Memkar): A cattle pen is rented for cattle and dung. A Chatzer is only for people's needs, therefore the renter does not get dung of others' animals. If one rented a cow for two or three years for milk, and it gave birth, will he receive the calf?! He rented it only for milk! This is why a worker keeps Metzi'os that he finds, for he was not hired to find Metzi'os.
Answer #2 (Lechem Mishneh 7:1): R. Matalon says that the Rambam explains that it is as if the owner stipulated that he rents the Chatzer only for necessary uses, but not for other rights, such as acquisition. I answer like the Nimukei Yosef, that rental is like a sale for that period only regarding usage. The property still belongs to the owner (and acquires for him).
Answer #3 (Shach CM 313:1): Tosfos (Bava Metzia 56b DH v'Hai) says that rental is like a sale only regarding Ona'ah. The Bach (Sof DH ha'Socher) says that mid'Rabanan, it is like a sale in other respects. What is his source?!
Rebuttal (Gra CM 313:5): Also the Rosh (Teshuvah 1:1) says that rental is like a sale to acquire. All the Meforshim are unlike the Rambam.
Question (Ketzos ha'Choshen 313:1): If rented land really belongs to the owner, he cannot authorize someone else (the renter) to acquire through the land without transferring ownership of the land!
Answer (Ketzos ha'Choshen ibid.): R. Matalon says that the owner can retain rights to acquire. R. Gamliel wanted R. Yehoshua and R. Akiva to acquire. The Rambam (Hilchos Gerushin 5:1) says that a rented Chatzer can acquire a Get, for rights to acquire normally come with rights of usage.
Maharit (2 CM 83): Even though rental is a sale for the day, it does not suffice to acquire Agav. The man who wanted to give a large gift of Metaltelim needed to buy a piece of land. It did not suffice to rent or borrow it! R. Gamliel rented the place of the tithes to R. Yehoshua and R. Akiva, and the Rambam says that renting the place works. This is only to enable the buyer's Kelim to acquire there, but not to acquire through the land itself.
Rebuttal (Ketzos ha'Choshen 313:1): The case with R. Gamliel proves that rental suffices for Agav. The Rema (CM 202:1) rules like this.
Note: In another case (Kidushin 26b), a man bought much land and gave a square Tefach to Ploni, and with it 100 flock and 100 barrels. Why did he buy so much? Perhaps no one wanted to sell less to him, or he wanted to buy a lot (e.g. to help publicize the gift). The same reasons could explain why he (and the man who bought a small plot) did not merely rent!
Question (Tosfos Bava Basra 51b DH b'Matanah): R. Tam says that one can acquire through property only if he can sell or give it; Peros rights do not suffice. A renter acquires, even though he cannot sell the property!
Answer (R. Tam, in Tosfos): A renter has great rights. Even if he died during the rental period, his heirs keep the premises until the end of the period. If a woman sold property and died, her husband takes it back immediately.
Rosh (Bava Basra 3:54): If a man gave a gift to his wife, she acquires and he does not eat the Peros. Why was Rava embarrassed about his counsel to give a Get? Since a husband does not eat the Peros of what he gives to his wife, she can acquire a Get there! Some say that it was not a proper gift; he merely lent the place to her. I disagree. He could give it for a total gift until the divorce! R. Tam says that ability to acquire does not depends on rights to the Peros. Rava holds that Kinyan Peros is not like Kinyan ha'Guf. Rather, since she could not sell it, it is not considered hers. Also, even though she eats the Peros, the Peros are like property that fell to her. We buy land with it, and he eats the Peros of that land. Some ask that it should acquire for her like a borrowed or rented field. I say that it is unlike a rented field, for her husband still has rights to spread Peros in it.
Shulchan Aruch (313:3): Dung in a Chatzer from the renter's animals belongs to the renter. Dung of others' animals belongs to the owner. One's yard acquires for him, even if it is rented out.
Maharit (1:65): Since Poskim argue about whether a rented Chatzer acquires for the owner or the renter, whoever is Muchzak keeps it. This is like seizure before the Safek arose, which helps.
Ketzos ha'Choshen (1): The Rambam (Hilchos Gerushin 5:1) says that a rented Chatzer can acquire a Get, for rights to acquire normally come with rights of usage. The Torah teaches that it suffices to put a Get in a woman's Chatzer, so we are not concerned if her husband has usage (Peros) rights. (In conclusion, we need not say her Get and Chatzer come together.) We are concerned for usage regarding other acquisitions through a Chatzer.
Avnei Milu'im (138:1): Even though Kinyan Peros is not like Kinyan ha'Guf, a rented Chatzer acquires for the owner because it is his Reshus. Why did Rav Ashi say that Rava really asked about how a slave can receive his own Get? Rava explicitly discussed a woman! Rather, Rava (Kidushin 42b) holds that brothers who divide an inheritance are like buyers. It follows that he holds that Kinyan Peros is like Kinyan ha'Guf, so it is as if her husband owns her hands.