1) ACQUIRING A "METZI'AH" THROUGH "KINYAN CHATZER"
QUESTION: The Gemara (11a) quotes Amora'im who teach that one's Chatzer which is not guarded ("she'Einah Mishtameres") cannot acquire a Metzi'ah for him unless he is standing next to his Chatzer. The Gemara questions this from the Mishnah in Ma'aser Sheni (5:9) which relates that Raban Gamliel, while traveling with other Tana'im, was Makneh his Ma'aseros to the other Tana'im by leasing to them a part of his land (which was not Mishtameres; see Tosfos DH v'Chi), thus enabling them to acquire the produce through Kinyan Chatzer even though they were not standing beside the Chatzer. Rav Papa (11b) answers that a Matanah, a gift, is different, because when a gift is given there is a "Da'as Acheres Makneh." The fact that it is being given by another person (rather than being acquired from Hefker) enables the recipient's Chatzer which is not Mishtameres to acquire the gift even when he is not standing beside his Chatzer.
The Gemara (end of 11b) questions this from the case of a man who divorces his wife by throwing a Get into his wife's Chatzer. In that case, the wife must be standing next to her Chatzer in order to acquire the Get. Why does she need to be standing there if -- in the case of giving a Get -- there is "Da'as Acheres Makneh"? The Gemara (beginning of 12a) answers that since a Get is a Chov (detriment) to a woman, the Chatzer cannot acquire it for her in her absence ("Ein Chavin l'Adam Ela b'Fanav"), while a Matanah, which is a Zechus (benefit) to a person, does not require the person's presence ("Zachin l'Adam she'Lo b'Fanav").
This explains the difference between acquiring a Get with one's Chatzer and acquiring a Matanah with one's Chatzer. This explanation, however, leads to another question: What is the difference between acquiring a Matanah with one's Chatzer and acquiring a Metzi'ah with one's Chatzer? One's Chatzer should be Koneh a Metzi'ah as well through the principle of "Zachin l'Adam she'Lo b'Fanav," even when the owner of the Chatzer is not present! Why should "Da'as Acheres Makneh" be necessary to acquire an object through a Chatzer that is not Mishtameres when the owner of the Chatzer is not present? (RASHI and Rishonim)
One might answer that, for some reason, a Chatzer can acquire a Metzi'ah only through "Yad" and, therefore, the owner must be standing next to it (like the woman who receives a Get in her Chatzer). If this is true, however, then there is another difficulty: Why does a Chatzer that is Mishtameres acquire a Metzi'ah for the owner even when the owner is not standing there? A Chatzer that works through "Yad" cannot be Koneh when the owner is not present. (See MAHARSHA, PNEI YEHOSHUA.)
(a) RASHI seems to address these questions at length. However, his answers do not seem clear, and he also seems to repeat himself (see Rashi to 11b, DH Ela Amar Rav Ashi). From the words of TOSFOS RABEINU PERETZ and other Rishonim, it is clear that Rashi is presenting two different approaches to the Sugya. These two approaches represent the ways that Rashi understood the Sugya at two different times. Originally, Rashi explained the Gemara in one way, which we will call his "Mahadura Kama." Later, Rashi changed his mind and added another explanation, which we will call his "Mahadura Basra" (and which appears in the beginning of DH Ela Amar Rav Ashi). (Rashi's Mahadura Basra is not complete in our text of Rashi. A more complete version was printed in the Salonica printing of the Gemara and is cited in part by the Shitah Mekubetzes. However, there seem to be numerous printing errors in what is printed there. See Shitah Mekubetzes.)
The two approaches differ mainly in how they understand the source for the Halachah that one's Chatzer serves as his Shali'ach. In his Mahadura Kama, Rashi understood that no verse is necessary to teach that a Chatzer can be a Shali'ach; once it is known that a person can be a Shali'ach and perform an act for another person, it is obvious that a Chatzer also can be a Shali'ach for a person. This is also Rashi's opinion in all of his other comments in this Sugya, except for the part that he added in his Mahadura Basra, as described above. (See Rashi to 10b, DH Mishum; 10b, DH Talmud Lomar; 11a, DH u'Mar Savar, and 11b, DH Ela Amar Rav Ashi, and see Insights to 10b and 11a.) Based on this, Rashi had to use one approach to answer the aforementioned questions.
In his Mahadura Basra, Rashi retracted this approach and explained that a Chatzer would not be considered a Shali'ach based on logic alone, and, therefore, a verse is necessary to teach that a Chatzer can be a Shali'ach. As a result, he was able to use a different approach to answer the questions. This is also the approach of Tosfos (10b, DH v'Iy Mishum, as the Maharsha explains on 11a). The Maharsha and Maharam point out that this approach seems more logical. After all, a person who is not a "Bar Da'as," such as a Katan, cannot be a Shali'ach. A Chatzer is certainly not a "Bar Da'as," so why should it be able to be a Shali'ach if not for a verse that specifically teaches that it can be a Shali'ach?
According to Rashi's approach in his Mahadura Basra, the very concept of Kinyan Chatzer is derived from the verse of Geneivah. Why does the Gemara learn from that verse that Chatzer works through Shelichus? Why does the Gemara not learn that it works through Yad, similar to what it derives from the verse of Get?
TOSFOS RABEINU PERETZ explains that according to this approach, the Gemara determines whether a Chatzer acts as a Shali'ach or as a Yad based on the context of the Halachah. With regard to Get, the verse must be teaching that a Chatzer acquires the Get for the woman through Yad, since receiving a Get is a Chov for the woman, and therefore a Shali'ach would not be able to receive it on her behalf unless she specifically appointed one for that purpose. Hence, the woman must be standing next to her Chatzer in order to acquire the Get, just as her hand is next to her body. With regard to a gift, however, the Gemara understands the verse to mean that a Chatzer can function as a Shali'ach to acquire it, since it is a Zechus for the owner to acquire the object. Consequently, it is not necessary for the owner to be standing near the field.
The status of a Metzi'ah in this respect is more complicated. On one hand, a Metzi'ah is a Zechus for the owner and therefore his Chatzer should acquire it for him as a Shali'ach, even when he is not nearby. On the other hand, a Metzi'ah is similar to a Get in that acquiring a Metzi'ah for the owner would cause a loss to others (as the Gemara explains on 8a), so a Chatzer should not be able to act as a Shali'ach to acquire a Metzi'ah. In this respect, a Chatzer should acquire a Metzi'ah only through Yad (i.e. when the owner is nearby).
Tosfos Rabeinu Peretz concludes that since it is not clear from the verse how a Chatzer should acquire a Metzi'ah, this indicates that the Torah leaves it for the Chachamim to determine based on their logic how a Chatzer acquires a Metzi'ah ("Lo Masrah ha'Kasuv Ela la'Chachamim"). The Chachamim ruled that a Chatzer that is Mishtameres acquires as a Shali'ach even when the owner is not nearby, while a Chatzer that is not Mishtameres acquires only through Yad and only when the owner is nearby. (Perhaps the logic for this distinction is that when the Chatzer is Mishtameres, the acquisition of a Metzi'ah is not as damaging to others, since it is not within their grasp anyway.)
The RAN cited by the NIMUKEI YOSEF explains this further. Even though a person is able to acquire a Metzi'ah on behalf of someone else (as a Shali'ach, and he is not considered to be causing a Chov to others, nevertheless a Chatzer is not able to acquire a Metzi'ah for its owner through Shelichus because it causes a Chov to others. The reason for this distinction is that a person can acquire a Metzi'ah for someone else due to a Migu: since he could have acquired it for himself, he may acquire it for others. A Chatzer, in contrast, cannot acquire a Metzi'ah for itself, and therefore it cannot acquire it for others.
(b) In his Mahadura Kama, Rashi was not able to explain the Gemara the way he explained it in his Mahadura Basra. Rashi originally maintained that the fact that a Chatzer can be a Shali'ach is derived from logic alone and not from a verse. Rashi therefore took a different approach. He explained that a Chatzer cannot act as a Shali'ach to acquire a Metzi'ah because an act of a Shali'ach requires "Da'as," conscious intent. When a person purchases an object with a Kinyan Chatzer, there is conscious intent involved on the part of the seller, even though the Shali'ach (the Chatzer) does not have conscious intent. However, when a Chatzer acquires a Metzi'ah, there is no conscious intent involved since the Metzi'ah is not being given by another person, and therefore a Chatzer cannot act as a Shali'ach to acquire a Metzi'ah.
However, this does not explain why a Chatzer which is Mishtameres can acquire a Metzi'ah for its owner even when the owner is not standing nearby, and it does not explain why a Chatzer which is not Mishtameres can acquire a Metzi'ah for its owner when the owner is standing nearby. The words of Rashi (11a, DH Iy Omed) imply that even when the owner is standing next to his Chatzer which is not Mishtameres, the Chatzer cannot acquire a Metzi'ah through Yad, since the Torah gives a Chatzer the status of Yad only with regard to Get and not with regard to Metzi'ah. Rather, standing next to the Chatzer makes it Mishtameres, and therefore the Chatzer can be a Shali'ach. How does the fact that it is Mishtameres enable the Chatzer to become a Shali'ach? Perhaps Rashi understands that if the Chatzer is Mishtameres it is considered as though there is "Da'as," conscious intent, to acquire the object for the owner, since the fact that the Chatzer is guarded with the intent of the owner makes it as if the Chatzer intends to acquire that object for the owner.
(c) The RAN cited by the NIMUKEI YOSEF explains that a Chatzer which is Mishtameres is considered an extension of a person's Yad, since people normally place things which are in their hands into a Chatzer that is Mishtameres. That is why a Chatzer that is Mishtameres can acquire an object for the owner even when the owner is not nearby.
Why, then, can a Chatzer that is Mishtameres not acquire a Get for a woman unless the woman is nearby? The Ran answers that a Chatzer is considered an extension of the owner's hand only with regard to objects that a person takes from his hand and places into his Chatzer for safekeeping. However, in the case of a Get, the woman normally is not interested in receiving the Get and she is not interested in placing it somewhere for safekeeping. She will not transfer it from her hand into her Chatzer. That is why a Chatzer cannot acquire a Get for a woman unless she is nearby, in which case it is considered an extension of her hand.
(d) The ROSH (1:31) explains that, actually, the same Halachah applies both to a Metzi'ah and to a Matanah: A Chatzer can acquire only when it is Mishtameres. When the Chatzer is not Mishtameres, the Chatzer cannot acquire the object for the owner, because even if the Chatzer functions as a Shali'ach a person would not give his object to a Shali'ach who will not guard it (which is what a "Chatzer she'Eino Mishtameres" is) and, therefore, a Chatzer that is not Mishtameres cannot be a Shali'ach. However, with regard to a Matanah, a Chatzer that is not actually guarded is still considered a Chatzer that is Mishtameres and can acquire the item through Shelichus, since the person who gives the gift is standing beside the Chatzer even though the Chatzer's owner is not there. The recipient of the gift is willing to have the giver watch the Chatzer for him, and the Chatzer therefore becomes Mishtameres through the giver.
TOSFOS RABEINU PERETZ (in the name of Rabeinu Peretz) offers a similar explanation for why a Chatzer is considered Mishtameres with regard to a Matanah even when it is not actually guarded. He explains that it is not necessary for there to be a physical barrier to prevent other people from taking what is in the Chatzer. Even if only the Halachah prevents others from taking what is in the Chatzer, it is considered Mishtameres. Therefore, with regard to a Matanah, since the one who gives the Matanah wants to give the gift only to this recipient, no one else has permission to take it, and thus it is considered to be "guarded" while in the Chatzer of the recipient. In contrast, anyone is entitled to take a Metzi'ah, and thus it is not considered "guarded" unless the owner of the Chatzer is actually present and guarding his Chatzer, or there is a physical barrier that prevents others from entering the Chatzer.
(See the RITVA, cited by the Shitah Mekubetzes, who offers an entirely different explanation for the Sugya. According to his explanation, Rav Ashi does not accept the distinction between Matanah and Metzi'ah and rules that in both cases either the Chatzer must be Mishtameres or the owner must be standing next to the field, and that Raban Gamliel was Makneh the produce to the other Tana'im through Kinyan Agav.)
2) CAN THE AIRSPACE OF ONE'S "CHATZER" ACQUIRE AN ITEM FOR HIM
QUESTION: Rava asks whether a person acquires a wallet that is thrown through the airspace of his Chatzer, from one side of the Chatzer to the other, and that does not land in the Chatzer. The question is whether the airspace above a Chatzer can acquire an object that is not destined to land in the Chatzer. The Gemara attempts to prove from the statement of Rebbi Yirmeyah that the owner of the Chatzer does acquire the wallet. Rebbi Yirmeyah teaches that although one's Chatzer cannot acquire a Metzi'ah -- such as an animal -- that is running through it unless the owner is able to run after and reach the animal while it is still in his field, a Chatzer can acquire a Matanah even though the owner is unable to reach it before it leaves his field. The Gemara argues that if a Chatzer can acquire a Matanah that passes through it without stopping in it, then it should also be able to acquire a wallet that flies through its airspace without landing in the Chatzer. The Gemara refutes this proof by distinguishing between an animal and a wallet: an animal that runs across the ground of the Chatzer is considered to have stopped in the Chatzer, but an item that travels through the airspace is not considered to have stopped in the Chatzer.
It is obvious from the Gemara's proof that the wallet thrown through the Chatzer is being given as a Matanah, gift, to the owner of the Chatzer, and is not a Metzi'ah. However, Rashi (DH Zarak) writes that the person who threw the wallet made it Hefker for anyone to take. If the wallet is Hefker, it should be like a Metzi'ah which is not acquired through "Da'as Acheres Makneh." How, then, can the Gemara compare this case to that of an object given as a Matanah which is running through one's field? (TOSFOS DH v'Yatza)
A similar question may be asked on the ROSH and RASHBA. The Rosh and Rashba explain that Rava's question applies both to a wallet of Hefker and to a wallet given as a Matanah. Since Rava's question remains unresolved, they rule that if a wallet of Hefker is thrown through the airspace of a Chatzer, the owner of the Chatzer is considered to be Muchzak mi'Safek in the wallet, and no one else may take it from him.
Why do the Rosh and Rashba write that the Halachah remains in doubt regarding a wallet of Hefker that passes through the airspace of one's field? Since a person cannot acquire a Metzi'ah that runs through his field when he cannot catch it before it leaves his field, it should follow that the same applies to a wallet of Hefker. If a Chatzer cannot acquire even an object that travels across the ground in such a case, it certainly cannot acquire an object that passes through its airspace.
(a) The ruling of the Rosh may be explained as follows. Perhaps the requirement that the owner must be able to catch the object before it leaves his field does not apply to an inanimate object such as a wallet, but only to a live animal which moves of its own volition. An object that passes over a field will land eventually, and even if it lands outside the field the owner easily can recover it. Thus, it stands to reason that the owner can acquire it since he will be able to capture it after it has left the field. An animal that runs through a field, in contrast, will continue running even after it leaves the field, and thus the owner cannot acquire it if he cannot reach it while it is still in his field.
However, this approach does not address the question on Rashi.
(b) The NIMUKEI YOSEF writes in the name of "Acharonim" that Rashi implies that an object that a person makes Hefker is considered "Da'as Acheres Makneh Oso." The MISHNEH L'MELECH (Hilchos Mechirah 29:11) writes that based on the Nimukei Yosef's explanation, according to Rashi whenever someone acquires an object from Hefker it is as if he receives a Matanah from the one who was Mafkir it. Hence, the only time that the owner of the field will have to be able to reach the object before it leaves his property is when the object was not made Hefker by a person but rather it was never in another person's domain (such as a wild animal, like a deer or a bird), or when the object became Hefker (after leaving a person's possession) in an inadvertent manner, such as through Ye'ush.
The KETZOS HA'CHOSHEN (273:1) finds further support for this approach in the words of the RAMBAM (Hilchos Nedarim 2:14) who writes that although Hefker is not a vow, it is similar to a vow in that a person cannot retract it. This implies that Hefker does not remove an item from a person's domain, but rather it requires him to let other people take it for themselves. When someone else takes it, he receives it from the original owner and not from an ownerless domain.
However, the Ketzos ha'Choshen points out that a number of Gemaras seem to contradict this approach. The Gemara in Shabbos (11b) teaches that when a person is Mafkir his object, the Mitzvah of Shevisas Kelim does not apply to it because it no longer is considered his. Also, in numerous places the Gemara applies the principle of "Hefker Beis Din Hefker" in a way which shows that the object leaves the domain of its previous owner. (To answer this question, the Ketzos ha'Choshen suggests that "Hefker Beis Din" is more powerful than an ordinary form of Hefker.) This also is evident from the Gemara in Nedarim (43a-b; see Insights there), as the RASHBA here points out.
The Rashba asserts that Rashi does not mean to say that an object of Hefker does not leave the domain of its original owner. Rather, he means that even though an object of Hefker has left the domain of its owner, when someone acquires that object it is considered as if there is "Da'as Acheres Makneh Oso"; it is considered as though it is being given to him and not that he is merely taking it for himself.
The NESIVOS HA'MISHPAT limits this further. He says that the Nimukei Yosef equates Hefker with Matanah and considers it "Da'as Acheres Makneh Oso" only with regard to Kinyan Chatzer. Thus, the Nimukei Yosef means that when the person who is Mafkir the object throws the object through the Chatzer, the Chatzer can acquire that object as if it were being given by someone just as a Chatzer can acquire a gift that one gives to the owner of the Chatzer.
(This may be justified based on the logic of the Rosh who writes that a person who gives a Matanah makes the Chatzer guarded, Mishtameres, on behalf of the recipient. Similarly, the Mafkir who throws the object through the airspace of the Chatzer is watching the Chatzer on behalf of the Chatzer's owner, the recipient of the Hefker object.)
(c) Others explain that the Nimukei Yosef does not mean that Hefker is like Matanah even with regard to Kinyan Chatzer. Rather, he means that in the case of the Gemara, a person threw a wallet through the airspace of the Chatzer with intention to give it to the first person who takes it. Accordingly, this is not a true act of Hefker. The word "Hefker" is used loosely; here it refers to an open-ended Matanah (which anyone may take). If a person is Mafkir an object and leaves it in a public place, then certainly it leaves his domain immediately, as the Gemara in Nedarim explains. (See KOS YESHU'OS, LECHEM ABIRIM.)
Why do Rashi and the Nimukei Yosef understand the case of the Gemara this way? Why do they not interpret the Gemara in its simplest sense, that the person who threw the wallet intended to give it as a Matanah specifically to the Chatzer's owner?
The answer is that some manuscripts of the Gemara included the word "v'Afkerei" ("and he made it Hefker [to all]") in Rava's question, as is evident from the words of Tosfos. The Nimukei Yosef writes that this was also the Girsa of Rav Yehuda'i Ga'on. Accordingly, Rashi is explaining the words of the Gemara according to his Girsa. Rashi explains that the word "v'Afkerei" is not to be understood literally, but rather it means that the owner of the wallet made it available for all to acquire it. (The Rashba, who does not have the Girsa of "v'Afkerei" in his text, offers another explanation for what forced Rashi to explain that Rava refers a wallet of Hefker, based on a Gemara later in Bava Metzia (102a).)
The same question, however, may be asked on the Gemara itself. Why does Rava mention that the owner was Mafkir the wallet, and not that he gave it as a Matanah to the owner of the Chatzer?
Perhaps Rava wanted to pose his question in a situation in which there will be a practical difference (with regard to whether the Chatzer is Koneh) even when the wallet's original owner does not change his mind and renege on the gift. If the original owner intended to give the wallet specifically to the owner of the Chatzer, it should make no difference whether the Chatzer is Koneh for him or not; he still can pick it up after it lands in another person's field because it was given specifically to him and to no one else. Therefore, in such a case the question of whether or not the Chatzer is Koneh will be relevant only if the giver changes his mind after the wallet has already passed through the Chatzer. If the Chatzer was already Koneh the wallet, it will be too late for him to change his mind. If the Chatzer was not Koneh the wallet, he may take his wallet back. In the case that Rashi describes, however, if the owner of the Chatzer is not Koneh the wallet, the owner of the neighboring Chatzer in which the wallet lands will acquire it. Thus, Rava's question is still relevant even if the person who threw the wallet does not change his mind.
3) AN ADULT "KATAN"
QUESTIONS: The Mishnah (12a) states that when children who are Ketanim (minors) find a Metzi'ah, the Metzi'ah belongs to their father. When children who are Gedolim (adults) find a Metzi'ah, they keep it for themselves. Rebbi Chiya bar Aba in the name of Rebbi Yochanan explains that when the Mishnah refers to one's children who are Gedolim, it does not mean literally Gedolim, and when the Mishnah mentions one's children who are Ketanim, it does not mean literally Ketanim. Rather, the term "Katan" refers to a child (whether a minor or adult) who is still supported by his father, and "Gadol" refers to a child (whether a minor or adult) who is not supported by his father.
(a) Why does Rebbi Chiya bar Aba in the name of Rebbi Yochanan take the words in the Mishnah out of their literal and straightforward meaning? What is problematic with explaining the word "Ketanim" to mean minors, and the word "Gedolim" to mean adults (which indeed is the way Shmuel (12a) understands the Mishnah)?
(b) Why does Rebbi Chiya bar Aba switch the order of the words as they appear in the Mishnah? The Mishnah first mentions "Ketanim" and then "Gedolim," while Rebbi Chiya bar Aba changes the order and says that "'Gadol' is not literal, and 'Katan' is not literal."
(a) The IMREI ZUTRI answers the first question as follows. Rebbi Yochanan infers from the Mishnah's words that "Katan" and "Gadol" are not to be understood literally. The Mishnah separates the cases of the Metzi'ah of one's child who is a Gadol, the Metzi'ah of one's Jewish servants, and the Metzi'ah of one's wife whom he divorced, and writes them as three distinct cases instead of combining them all into one case ("the Metzi'ah of one's child who is a Gadol, one's Jewish servants, and one's wife whom he divorced"). Rebbi Yochanan infers from this that the Tana of the Mishnah wants to show that the three cases are not identical in their other aspects. In the case of one's child who is a Gadol, the Halachah (that the Metzi'ah belongs to the child) depends on whether the child is supported by his father. In contrast, in the case of the Metzi'ah of one's divorced wife, even if the wife is still supported by the husband (as in the case of "Megureshes v'Eino Megureshes," as the Gemara later explains the Mishnah), she still keeps her Metzi'ah.
(b) The TORAS CHAIM answers that Rebbi Yochanan derives his explanation from the end of the Mishnah that says that the Metzi'ah of one's children who are Gedolim belong to them. If the Mishnah refers literally to an adult child, it is obvious that what he finds belongs to him; there is no need for the Mishnah to teach that he keeps his findings. The Mishnah must refer not to an actual adult child, but to a child who is a Katan but who is considered an adult in this regard when he is not supported by his father.
From the fact that the reference at the end of the Mishnah to children who are Gedolim is not literal but refers to children who are not supported by their father, Rebbi Yochanan derives that the beginning of the Mishnah -- which mentions children who are Ketanim -- is also not literal, and it means children who are supported by their father.
This also answers the second question. Since Rebbi Yochanan derives that the "Ketanim" of the Reisha of the Mishnah is not literal only from the word "Gedolim" of the Seifa of the Mishnah, he therefore changes the order and says that "Gadol" is not literal before he says that "Katan" is not literal. (I. Alsheich)
(Shmuel, on the other hand, who understands the Mishnah in its literal sense, does not make the same inference -- that "Gedolim" in the Seifa of the Mishnah cannot be literal for otherwise there is no Chidush. Rather, he maintains that there indeed is no Chidush when the Seifa of the Mishnah mentions children who are Gedolim, and the Mishnah mentions that law only to parallel the Reisha which mentions children who are Ketanim (in which case there is a Chidush). Rebbi Yochanan counters that just as the other two cases in the Seifa teach a Chidush, so, too, the case of children who are Gedolim must also teach a Chidush.)