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Kinyan after Nesinah

Last Thursday, we learned through (well, most of the way through) a קצות החושן, as per the normal Thursday night schedule. I just saw the נתיבות'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 קצוה"ח as brought down in the נתיבות, which covers the main points.

The טור 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 מעשה קניין. The obvious question is why can't Shimon acquire the object via a קניין חצר?

In fact, the בית יוםף 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 קצוה"ח, however, quotes the ט"ז, who thinks that this may in fact be a correct reading. He quotes the רשב"ם 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 קניין חצר.

The מוהרי"ט quotes one of the "גדולי החכמים" who wanted use this argument, and he [the מוהרי"ט] asks three questions, of which I'm only quoting the first here. "How was Shimon ever קונה part of Reuven's property?"

The קצוה"ח answers as follows (according the נתיבות's summary): "Shimon specifically (or implicitly?) asked Reuven to acquire part of the his property, when he placed the item there."

The נתיבות rejects this answer, since he proves that even if Shimon acquired usage rights (זכות תשמיש) in Reuven's property, he would need a full קניין to be able to use the property to acquire.

I don't understand this. The קצוה"ח is not suggesting that Shimon has full ownership; in fact, he very clearly limits it to the usage rights. All the קצוה"ח requires is that Shimon has enough ownership to prevent Reuven from using it for a קניין חצר. 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 קניין חצר.

I think it's interesting to note that this נתיבות may illustrate another point we discussed earlier in the shiur (although not online). The מוהרי"ט's third question asks why we can't say חצירו ומתנתו באין כאחד, similar to the principle we find by גירושין called "גיטה וחצירה באין כאחד".

The קצוה"ח responds by suggesting that גיטה וחצירה באין כאחד only applies in a case where there's a מעשה נתינה. However, he notes that one cannot release an עבד with just דיבור, without a גט שחרור. Thus, in our case, which is just דיבור, this will not work.

The נתיבות rejects this answers, and suggests that Reuven can just be מוחל the property he received (back) to Shimon. The only way this can work is with a קניין אודיתא. According to the קצוה"ח, this type of קניין requires two עדים, and thus is a non-trivial task. However, according to the נתיבות, this can be done without any witnesses. Thus, the question of the מוהרי"ט remains according to the נתיבות.

3 Responses to “Kinyan after Nesinah”

  1. Mike Miller says:

    It appears that my first question may be dealt with in both the notes (ר' רפאלי, IIRC) at the end of the נמיבות, as well as by R' Scheinberg's טבעת החושן. 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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