Bava Metzia 9b (ט:) — the Talmud in English

And the Gemara adds:

And if it is the public domain, he acquires it.

And this is in accordance with what we have now established: that the case concerns a sale, and the seller said to him, “Acquire it in the manner in which people acquire it.” Therefore, if he was riding in the public domain, he acquires it. For there, this is the customary manner: to ride rather than to lead, so that passersby will not come between him and the animal. Therefore, he leads it by riding.

And if he is an important person, he acquires it.

An important person does not customarily lead an animal by guiding it; rather, it is a matter of dignity for him to ride the animal. Therefore, he acquires it by riding, because this is the customary manner for an important person.

And if it is a woman, she acquires it.

A woman does not customarily lead an animal, because she may not have the strength to pull it, lest the animal break away from her. Therefore, she leads an animal by riding it. Consequently, in the case of a woman as well, this is the customary manner.

And if he is a contemptible person, he acquires it.

A lowly person, who customarily rides before everyone and is not modest, acquires it by riding, because that is his customary manner.

It follows that, according to the conclusion, riding in the city does not effect acquisition only when the riding took place in an alleyway in the city, and only when the rider was a man who was neither an important person nor a person of inferior status, but an average person, who is not considered wealthy and is not embarrassed to lead an animal on foot. Therefore, if he rode in an alleyway, he did not acquire it.

Rabbi Elazar raised a dilemma: If one says to another: “Pull this animal in order to acquire the utensils upon it,” what is the halakha?

If a person wishes to sell another the utensils upon an animal, without selling him the animal itself, can the buyer acquire the utensils through the act of pulling the animal, even though he does not dislodge the utensils themselves from their place?

And the Gemara is astonished:

“In order to acquire”?! Who told him, “Acquire it”?!

That is, the Gemara initially understood that he said to him: “Pull the animal in order to acquire the utensils upon it.” The meaning of this statement would be: You will indeed pull it with the intention of acquiring it, but I, the seller, do not transfer ownership of it to you! If so, how could he acquire it when there is no intent on the part of the transferor?

Rather,

the wording of Rabbi Elazar’s dilemma must be emended as follows: If one says to another:

“Pull this animal and acquire

through this pulling the

utensils upon it; what is the halakha?”

He says to him: “Pull this animal so that you will acquire the utensils,” and he indeed intends to transfer ownership of them to him.

Does the pulling of the animal effect the acquisition of the utensils, or not?

The dilemma is whether the utensils are acquired through pulling the animal. It is certain that if he says to him, “Pull this chest and acquire the utensils inside it,” he acquires the utensils by pulling the chest. But with utensils upon an animal, although he pulls the animal, the animal moves on its own. If so, it is possible to say that the pulling does not effect acquisition of the utensils, since in practice the utensils are dragged along because the animal walks, and not because of the buyer’s act of pulling the animal.

Rava said: If he said to him, “Acquire the animal and acquire the utensils,” does he acquire the utensils?

The animal is

a moving courtyard

that is,

and a moving courtyard does not effect acquisition!

That is, Rava infers from the fact that Rabbi Elazar’s dilemma is specifically when he sells him only the utensils that, if he sells him the animal together with the utensils, he certainly acquires the utensils. Rava asks: How could he acquire the utensils together with the animal, according to the possibility that pulling an animal does not effect acquisition of the utensils?

One cannot say that he acquired them through acquisition by means of a courtyard, because the utensils are upon the animal, and the animal is like his courtyard; therefore, once he acquired the animal by pulling it, the utensils placed upon it should be acquired by means of a courtyard. This is impossible, however, since the animal is a “moving courtyard,” and a moving courtyard does not effect acquisition.

And if you would say that the animal was standing,

perhaps we could say that his acquisition of the utensils upon the animal through acquisition by means of a courtyard refers to a case in which the animal was standing. This too is impossible, since

but

there is a general principle with regard to acquisition by means of a courtyard:

anything that, if it were

while

moving, would not effect acquisition,

even when it is

standing or sitting, it does not effect acquisition.

That is, any courtyard that is capable of moving is considered a moving courtyard even when it is not currently moving. Therefore, even a standing animal, since it is capable of walking, is not considered a courtyard that can effect acquisition.

And the Gemara’s conclusion is:

And the halakha is: when it is hobbled!

The acquisition of utensils upon an animal through acquisition by means of a courtyard—that is, when the animal is considered his courtyard—applies specifically when the animal is hobbled, so that it cannot walk. Only then does he acquire the utensils upon it.

It follows that if he sells him the animal and the utensils upon it, he acquires both of them specifically when he pulled the animal and it was hobbled afterward [or while he was pulling it]. In that case, he acquires the utensils upon it through acquisition by means of a courtyard. But whether one can acquire utensils upon an animal through pulling the animal without acquiring the animal itself is the dilemma raised by Rabbi Elazar.

Rav Pappa and Rav Huna, son of Rabbi Yehoshua, said to Rava: If that is so,

according to your statement, that anything which does not remain in its place but moves and sways is considered a moving courtyard, and a moving courtyard does not effect acquisition, then, if one

was traveling [

riding ]

on a boat, and fish jumped and fell into the boat, is it likewise

the case that we should say

that it is a moving courtyard, and he does not acquire them,

the owner of the boat does not acquire the fish through acquisition by means of a courtyard, because the boat is a “moving courtyard”?

He said to him: The boat is resting in place, and it is the water that transports it.

A boat is not considered a moving courtyard, because the boat itself remains in place; only the water transports it. This is unlike an animal, which moves itself.

And the Gemara raises another objection to Rava’s statement:

Ravina said to Rav Ashi: If that is so,

that a moving courtyard does not effect acquisition, if

she was walking in the public domain,

which is not the woman’s domain,

and he threw

her husband

a bill of divorce into her lap or into her basket,

a basket placed on her head, should

here too,

if he gave the bill of divorce into the basket, we say

that she is not divorced

through it, because the basket is a moving courtyard?! But the Mishna in Gittin [77a] says: If he threw her bill of divorce into her lap or into her basket, she is divorced!

He said to him: The basket is resting in place, and it is she who is walking beneath it.

A basket found on her head is not a moving courtyard, just as in the case of a boat: the basket is resting, and only the woman beneath it is moving. The basket itself does not move from its place, and therefore it is not a moving courtyard.

Mishna:

One who

was riding upon an animal and

saw the lost item

lying on the ground,

and said to his companion

who was walking beside him:

“Give it to me,”

pick up the lost item and give it to me—

he picked it up

his companion,

and said: “I acquired it for myself

rather than for you”—

he acquired it.

His companion acquires it.

But

if, after he had given it to him,

only after he had given him the lost item,

his companion said

:

“I acquired it first,”

immediately, because when I lifted it, I intended to acquire it for myself,

he has said nothing!

For either way, if we believe him that he indeed acquired the lost item for himself from the outset, then he subsequently gave it to his riding companion as a gift. And all the more so if we do not believe him, but say that he truly intended at first to acquire the lost item for his companion and then changed his mind, his companion acquired it immediately when he lifted it. And even if we say that one who lifts a lost item for another does not acquire it for that other person [see the Gemara], this lost item was ownerless in the interim, until it reached his companion’s hand, and at that point he acquired it.

Gemara:

We learned there

in tractate Pe’a:

One who gathers the pe’a,

a person who entered another’s field and gathered the pe’a,

and said: “This is for so-and-so, a poor person.”

The Shita Mekubetzet cites early authorities who disagree with Rashi, because there is a migo: if he had declared all his property ownerless, this field would also have been included, and he would consequently no longer be the owner of the field and could gather the portions for himself. [Nevertheless, they write that Rashi’s interpretation is correct, that the case does not involve the owner of the field himself. This follows from the continuation of the Gemara’s discussion, which states that in a case of one poor person gathering for another poor person, everyone agrees that he acquires it for him. If he were the owner of the field himself, we would again have to invoke two migo inferences: first, the inference that he could have declared the field ownerless, and afterward the inference that since he could acquire it for himself, he could also acquire it for his companion. For as long as he had not declared his field ownerless, one could not say that since he could acquire it for himself, he could also acquire it for his companion, since he is warned regarding what is his. Why, then, would the Sages agree?] The early authorities also wrote that Rashi maintains that even if he declares his field ownerless, he remains prohibited from gathering the designated portions from that field. The determining factor is the time when the main crop of the field was harvested: if the field belonged to him at that time, he can never gather the designated portions from that field, even if, at the time when the designated portions are gathered, the field no longer belongs to him. The Kehillot Yaakov [14] explained the disagreement between the early authorities and Rashi as follows. Rashi maintains that the basis of the prohibition against a poor person gathering from his own field is to complete and reinforce the positive commandment to give the designated portions to the poor. Therefore, the Torah warned the owner of the field not to gather them for himself, even if he is poor. Accordingly, everything depends on the time when the obligation of the designated portions takes effect—that is, the time when the main crop of the field is harvested. If he was obligated in these designated portions at that time, he remains obligated forever, even if he later becomes poor. The early authorities, by contrast, maintain that the basis of the prohibition is that the owner of the field is always considered wealthy with regard to these designated portions, since the main part of the field belongs to him, even though he is actually poor. Therefore, the determining factor is the time when the designated portions are gathered. If, at that time, he has already declared the field ownerless, he is considered poor with regard to those portions and is permitted to gather them. It is certain that one who has declared all his property ownerless is immediately permitted to gather any designated portion, even those portions that had been designated as such while he was still wealthy. The Kehillot Yaakov offered another explanation of the view of the early authorities: the law governing a wealthy person, who is prohibited from gathering designated portions at all, differs from the law governing a poor person, who is prohibited only from gathering them in his own field. The basis of the wealthy person’s prohibition is the prohibition against theft, since the designated portions do not belong to him. Therefore, he cannot gather them for another poor person. Just as he cannot acquire another person’s money for himself without that person’s knowledge, so he cannot acquire it for others, even though they are entitled to that money; how can he acquire property that does not belong to him? This is not the case with a poor person who owns the field. He has a right to designated portions in general. The reason he cannot gather designated portions from his own field is not theft, but rather that a commandment is imposed upon him to leave the portions for other poor people. He can fulfill this commandment even if he first acquires the portions for himself and then gives them to a poor person as a gift from his own property, thereby fulfilling the commandment of the designated portion. Since he at least has the legal capacity to acquire these portions for himself on the condition that he subsequently give them to a poor person, we say: Since he can acquire them for himself, he can also acquire them for his companion. Therefore, he can acquire these portions for other poor people. [This explanation follows the Jerusalem Talmud, since the Babylonian Talmud explains that when a wealthy person gathers for a poor person, two migo inferences are required, whereas according to this explanation, one migo is sufficient.] The Penei Yehoshua wrote that Rashi maintains that, in the case of the owner of the field, it is not appropriate to say that there is a migo based on the possibility that he could have declared his field ownerless. For by doing so he would remove from himself the commandments of the designated portion and tithes. Why would he do that for the sake of the poor person for whom he wishes to acquire the portions? On the contrary, we accept the principle that a person prefers to perform a commandment with his own property, whereas after he declares his field ownerless, it is no longer his property. The writings of Rabbi Chaim explain Rashi’s view as follows: An ordinary wealthy person who gathers designated portions improperly violates only the prohibition against stealing from the poor. But the owner of the field who gathers them for himself violates an additional prohibition, “For the poor and the stranger you shall leave them.” A migo is effective only with regard to the law of theft, because a migo can establish a monetary right—meaning that through the migo he is considered to have a monetary right to the property. But a migo is not effective with regard to a prohibition. Therefore, in the case of the owner of the field, we do not say that since he could have declared his field ownerless, he may gather its designated portions, because in his case there is also a prohibition, and not merely a monetary law.

Rabbi Eliezer says: He acquires it for him,

for that poor person he acquires the pe’a.

And the Sages say:

He does not acquire the pe’a for that poor person. Therefore,

he shall give it

the pe’a he gathered

to the first poor person he encounters.

Ulla said that Rabbi Yehoshua ben Levi said: The dispute

between Rabbi Eliezer and the Sages applies only

when a wealthy person gathers for a poor person,

when the person who gathered the pe’a was wealthy and is not permitted to take pe’a for himself, but intended to acquire it for a poor person, who is permitted to take pe’a.

Rabbi Eliezer maintains

that we invoke migo twice:

The first is:

Since, had he wished, he could have declared his property ownerless and become poor, in which case it would have been fit for him,

since the wealthy person could have declared his property ownerless and become poor, at which point he would have been permitted to gather pe’a for himself,

now too it is fit for him,

we say that now as well, while he is still wealthy, it is as though he were poor and permitted to gather pe’a for himself. Therefore, he is also permitted to gather it for another poor person, because

since he can acquire it for himself, he can also acquire it for his companion

since he can gather it for himself, he can also gather it for his poor companion.

And the Rabbis maintain: We invoke one migo, but we do not invoke two migo arguments.

We invoke only one migo, not two. Therefore, only if the one who gathered the pe’a was himself poor can he acquire it for his poor companion, by means of “since he can acquire it for himself, he can also acquire it for his companion.” But if he is wealthy, he cannot acquire it for his companion by means of the additional migo that “since, had he wished, he could have declared his property ownerless.”

But in the case of a poor person gathering for a poor person,

if the one who gathered it is also poor,

everyone agrees: He acquires it for him

for his poor companion. For the Sages too agree that we invoke one migo, namely,

since he can acquire it for himself, he can also acquire it for his companion.

Rav Naḥman said to Ulla: Let the Master say

that even

in the case of a poor person gathering for a poor person there is a dispute!

According to the Sages, even if the one who gathered it is himself poor, he cannot gather it for another poor person, because we do not invoke even one migo.

And there is proof that the Rabbis disagree even in the case of a poor person gathering for a poor person:

For “

a lost item,”

everyone

is considered to be within the category of

poor people

with regard to

it,

since anyone can acquire a lost item, just as poor people can acquire pe’a.

And we learned

in our Mishna:

One who was riding upon an animal, saw the lost item, and said to his companion, “Give it to me.”

He picked it up and said, “I acquired it,” and he acquired it.

The Gemara now understands that when he says, “I acquired it,” he means that although when he lifted the lost item he intended to acquire it for his companion, he now regrets this and wishes to acquire it for himself. Nevertheless, his companion did not acquire the lost item, because one who lifts a lost item for another does not acquire it for that other person.

Granted, if you say that in the case of a poor person gathering for a poor person there is a dispute,

that the Rabbis disagree with Rabbi Eliezer even in the case of a poor person gathering for a poor person, then this is understandable.