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@YisroelKatz posted on Tue Jan 17, 206 days ago

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בס"ד
IT WAS ALSO TAUGHT THUS IN A BARAISA - JUST AS [THE SAGES] INSTITUTED "DRAWING NEAR" AS A METHOD OF ACQUISITION IN CASES OF PURCHASERS SO THEY INSTITUTED "DRAWING NEAR" AS A METHOD OF ACQUISITION IN CASES OF CUSTODIANS; AND JUST AS LAND IS ACQUIRED BY MEANS OF MONEY, A DOCUMENT, OR A PROPRIETARY ACT, SO A RENTAL IS ACQUIRED BY MEANS OF MONEY, A DOCUMENT, OR A PROPRIETARY ACT. WHY IS A RENTAL MENTIONED HERE - RAV CHISDA SAID - THE BARAISA SPEAKS OF A RENTAL OF LAND, AND TEACHES THAT IT IS EFFECTED THROUGH ANY ONE OF THE THREE ENUMERATED METHODS OF ACQUISITION
תניא נמי הכי כשם שתקנו משיכה בלקוחות כך תקנו משיכה בשומרים וכשם שקרקע נקנית בכסף ובשטר ובחזקה כך שכירות נקנה בכסף ובשטר ובחזקה שכירות מאי עבידתיה אמר רב חסדא שכירות קרקע
RISHONIM DISPUTE THE SCOPE OF THIS RABBINIC DECREE. RAMBAM רמב"ם (HIL. SECHIRUS 2:8) IMPLIES THAT THE DECREE ESTABLISHES TWO LAWS - (1) THE OWNER'S RIGHT OF RETRACTION TERMINATES WHEN A BORROWER OR RENTER PERFORMS MESHICHAH ON THE ANIMAL (2) NO SHOMER BECOMES SUBJECT TO LIABILITY UNTIL HE PERFORMS MESHICHAH (LECHEM MISHNEH THERE AND HAGAHOS HAGRA HERE). TOSAFOS MAINTAIN, HOWEVER, THAT THE RABBINIC DECREE ESTABLISHES ONLY THE FIRST LAW ENUMERATED ABOVE. [TOSAFOS IMPLY THAT THIS IS SO ONLY REGARDING A BORROWER AND A RENTER. THE RISHONIM DISCUSS WHETHER IT IS SO WITH RESPECT TO A PAID CUSTODIAN, (RAN AND NIMUKEI YOSEF). SEE THERE ALSO FOR A DISCUSSION OF THE RIGHT OF RETRACTION FOR THE BORROWER AND THE RENTER.] THEY ARGUE THAT PAID AND UNPAID CUSTODIANS BECOME SUBJECT TO LIABILITY AS SOON AS THE ANIMAL ENTERS THEIR CUSTODY, EVEN BEFORE A משיכה MESHICHAH IS PERFORMED, AND THAT A BORROWER INCURS LIABILITY THROUGH משיכה MESHICHAH BY BIBLICAL LAW. [ROSH ראש WHO GENERALLY CONCURS WITH TOSAFOS' INTERPRETATION BUT MAINTAINS THAT UNDER BIBLICAL LAW EVEN A BORROWER INCURS LIABILITY WITHOUT משיכה MESHICHAH - SEE ABOVE NOTE 4, TUR CHOSHEN MISHPAT 340, BIUR HAGRA §16, MACHANEH EPHRAIM HIL. SHOMRIM §7, CF. TOS. HAROSH, CHOSHEN MISHPAT 291:5.]
ROSH ראש EXPLAINS WHY IN HIS OPINION TERMINATION OF THE OWNER'S RIGHT OF RETRACTION DOES REQUIRE משיכה MESHICHAH BY A BORROWER, WHILE THE BORROWER'S ASSUMPTION OF RESPONSIBILITY DOES NOT - WITH RESPECT TO RETRACTION, THE OBJECT REMAINS UNDER ITS OWNER'S CONTROL UNTIL AN ACT THAT COULD EFFECT A PURCHASE (I.E. משיכה MESHICHAH) IS PERFORMED, THEREBY REMOVING IT TO THE SHOMER'S CONTROL. HENCE, THE OWNER CAN RETRACT AT ANY TIME BEFORE משיכה MESHICHAH, SINCE HE STILL HAS CONTROL OF THE OBJECT. REGARDING LIABILITY, HOWEVER, IT IS LOGICAL TO SAY THAT AT THE MOMENT THE OWNER CEASES WATCHING HIS OBJECT AT THE SHOMER'S BEHEST (I.E. EVEN BEFORE משיכה MESHICHAH), THE SHOMER THEN ASSUMES RESPONSIBILITY FOR THE OBJECT.
TO SUMMARIZE THE THREE OPINIONS PRESENTED BY THE GEMARA (ACCORDING TO TOS. HAROSH AND TOSAFOS TO BAVA KAMMA 79 ד"ה תיקנו) - REGARDING WHETHER SHOMRIM ACQUIRE ENTRUSTED OBJECTS WITH משיכה MESHICHAH, רבי אמי R' AMI MAINTAINS THAT THEY DO ACQUIRE WITH משיכה MESHICHAH UNDER BIBLICAL LAW (AND SO ACCORDING TO HIM THE LENDER OF HEKDESH'S HATCHET IS GUILTY OF MISAPPROPRIATING CONSECRATED PROPERTY), רבי אלעזר R' ELAZAR MAINTAINS THAT SHOMRIM ACQUIRE WITH משיכה MESHICHAH ONLY BY RABBINIC DECREE, AND רב הונא RAV HUNA HOLDS THAT THEY DO NOT ACQUIRE WITH משיכה MESHICHAH EVEN BY RABBINIC DECREE (TOS. HAROSH). THEREFORE, ACCORDING TO רב הונא RAV HUNA, AN OWNER'S RIGHT OF RETRACTION IS NOT TERMINATED UNTIL THE BORROWER OR LENDER ACTUALLY USES THE OBJECT. ACCORDING TO רבי אמי R' AMI AND רבי אלעזר R' ELAZAR, IT IS TERMINATED WHEN THE SHOMER ACQUIRES THE OBJECT WITH משיכה MESHICHAH.
REAL PROPERTY CAN BE ACQUIRED THROUGH ONE OF THREE METHODS. A PROPRIETARY ACT (CHAZAKAH) חזקה INVOLVES THE PURCHASER DEMONSTRATING HIS ASSUMPTION OF OWNERSHIP BY PERFORMING SOME ACTION THAT IMPROVES THE PROPERTY. HE MAY, FOR EXAMPLE, PLOW A SMALL PORTION OF THE FIELD, LOCK A GATE, OR CREATE AN OPENING IN A FENCE (BAVA BASRA 42). THE GEMARA (KIDDUSHIN 26) IDENTIFIES THE BIBLICAL SOURCE FOR EACH METHOD OF ACQUISITION
(RASHI רש"י)
LITERALLY - WHAT IS ITS FUNCTION, THAT IS, WHY DOES THE BARAISA STATE THAT MOVEABLE PROPERTY MAY BE ACQUIRED BY MEANS OF MONEY, A DOCUMENT, OR A PROPRIETARY ACT - IRRESPECTIVE OF WHETHER MESHICHAH WAS PERFORMED [THE MISHNAH (KIDDUSHIN) EXPRESSLY TEACHES THAT MOVEABLE PROPERTY IS ACQUIRED ONLY THROUGH משיכה MESHICHAH!] FURTHER, HOW IS IT POSSIBLE TO PERFORM A PROPRIETARY ACT ON MOVEABLE PROPERTY WITHOUT FIRST DRAWING IT NEAR (THE ESSENTIAL ACT OF משיכה MESHICHAH)
(RASHI רש"י NIMUKEI YOSEF, CF. RAN, RITVA)
THE BARAISA THUS TEACHES THAT WHEN, FOR EXAMPLE, A HOUSE IS RENTED, THE AGREEMENT IS CONSUMATED AND CANNOT BE RESCINDED BY EITHER PARTY ONCE (1) THE RENTER TENDERS MONEY, OR (2) THE OWNER WRITES A DOCUMENT THAT STATES, "MY HOUSE IS RENTED TO YOU," AND THEN TRANSFERS THE DOCUMENT TO THE RENTER, OR (3) THE RENTER PERFORMS A PROPRIETARY ACT TO IMPROVE THE HOUSE
(RASHI רש"י)
BAVA METZIA 99
DAF YOMI
בבא מציעא צט
דף יומי

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