# mikeage.net @ ז׳ שבט תשפ״א

## Kinyan after Nesinah

Last Thursday, we learned through (well, most of the way through) a ×§×¦×•×ª ×”×—×•×©×Ÿ, as per the normal Thursday night schedule. I just saw the × ×ª×™×‘×•×ª's response, and I admit, I'm a bit puzzled, and have a few questions (note: not that they're good questions; odds are I'm misunderstanding something). The post below summarizes the ×§×¦×•×”"×— as brought down in the × ×ª×™×‘×•×ª, which covers the main points.

The ×˜×•×¨ in 189:1 writes that if Reuven gave Shimon an object for safekeeping, he cannot use it to buy a field from Shimon (in lieu of payment). if Reuven gave Shimon an item for safekeeping, and then Shimon wants to buy it, he can't just pay money and acquire the item automatically. The reason is that there's no ×ž×¢×©×” ×§× ×™×™×Ÿ. The obvious question is why can't Shimon acquire the object via a ×§× ×™×™×Ÿ ×—×¦×¨?

In fact, the ×‘×™×ª ×™×•××£ promptly says that this must be a printers' mistake, and the case should read that the object is located in a third party's property.

The ×§×¦×•×”"×—, however, quotes the ×˜"×–, who thinks that this may in fact be a correct reading. He quotes the ×¨×©×‘"× as explaining that when Reuven gives Shimon an item for safekeeping, Reuven acquires a share in the property under which Shimon placed the item. Thus, there can be no ×§× ×™×™×Ÿ ×—×¦×¨.

The ×ž×•×”×¨×™"×˜ quotes one of the "×’×“×•×œ×™ ×”×—×›×ž×™×" who wanted use this argument, and he [the ×ž×•×”×¨×™"×˜] asks three questions, of which I'm only quoting the first here. "How was Shimon ever ×§×•× ×” part of Reuven's property?"

The ×§×¦×•×”"×— answers as follows (according the × ×ª×™×‘×•×ª's summary): "Shimon specifically (or implicitly?) asked Reuven to acquire part of the his property, when he placed the item there."

The × ×ª×™×‘×•×ª rejects this answer, since he proves that even if Shimon acquired usage rights (×–×›×•×ª ×ª×©×ž×™×©) in Reuven's property, he would need a full ×§× ×™×™×Ÿ to be able to use the property to acquire.

I don't understand this. The ×§×¦×•×”"×— is not suggesting that Shimon has full ownership; in fact, he very clearly limits it to the usage rights. All the ×§×¦×•×”"×— requires is that Shimon has enough ownership to prevent Reuven from using it for a ×§× ×™×™×Ÿ ×—×¦×¨. He even proves this from the case of a jointly owned field, where each partner's share is enough to prevent his co-owner from using the field for a ×§× ×™×™×Ÿ ×—×¦×¨.

I think it's interesting to note that this × ×ª×™×‘×•×ª may illustrate another point we discussed earlier in the shiur (although not online). The ×ž×•×”×¨×™"×˜'s third question asks why we can't say ×—×¦×™×¨×• ×•×ž×ª× ×ª×• ×‘××™×Ÿ ×›××—×“, similar to the principle we find by ×’×™×¨×•×©×™×Ÿ called "×’×™×˜×” ×•×—×¦×™×¨×” ×‘××™×Ÿ ×›××—×“".

The ×§×¦×•×”"×— responds by suggesting that ×’×™×˜×” ×•×—×¦×™×¨×” ×‘××™×Ÿ ×›××—×“ only applies in a case where there's a ×ž×¢×©×” × ×ª×™× ×”. However, he notes that one cannot release an ×¢×‘×“ with just ×“×™×‘×•×¨, without a ×’×˜ ×©×—×¨×•×¨. Thus, in our case, which is just ×“×™×‘×•×¨, this will not work.

The × ×ª×™×‘×•×ª rejects this answers, and suggests that Reuven can just be ×ž×•×—×œ the property he received (back) to Shimon. The only way this can work is with a ×§× ×™×™×Ÿ ××•×“×™×ª×. According to the ×§×¦×•×”"×—, this type of ×§× ×™×™×Ÿ requires two ×¢×“×™×, and thus is a non-trivial task. However, according to the × ×ª×™×‘×•×ª, this can be done without any witnesses. Thus, the question of the ×ž×•×”×¨×™"×˜ remains according to the × ×ª×™×‘×•×ª.

### 3 Responses to “Kinyan after Nesinah”

1. Mike Miller says:

It appears that my first question may be dealt with in both the notes (×¨' ×¨×¤××œ×™, IIRC) at the end of the × ×ž×™×‘×•×ª, as well as by R' Scheinberg's ×˜×‘×¢×ª ×”×—×•×©×Ÿ. However, I didn't really follow what the Rav showed me; I have to return to this.

2. Rav says:

The Tur you quoted was discussing a potential transfer of ownership of the item itself that was given for safekeeping. Reuven asks Shimon to watch his chess set and it is placed on the shelf in Shimon's closet. Shimon then shows an interest in purchasing the chess set and Reuven sets a price and the deal is closed. Shimon pays the money. Does Shimon need a kinyan hagboho or can he use kinyan chatzer since the item is in his closet? The Tur rules that he must make a kinyan hagboho.

3. Mike Miller says:

Ah, yes. The case I originally described here is the Tur (quoted the Rosh as arguing with the Rambam) as discussed in the previous post. Edited.

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