Kiddushin 26a — the Talmud in English

Alternatively:

another way of acquiring an elephant is to acquire it

by

lifting, for example, by placing on the ground

bundles of branches

that are three handbreadths higher than the ground, and the purchaser leads the elephant over them; and when the elephant ascends upon them, it is three handbreadths higher than the ground, and one who lifts an object three handbreadths from the ground acquires it through acquisition by lifting.

Mishna:

The Mishna before us deals with the acquisitions of land and movable property.

Land is called in the Mishna “property that has responsibility,” because when a person lends money to his fellow, he relies on its responsibility, that it remains in its place

forever. This is not so with movable property, which can be lost or burned, and the borrower can also conceal it, and a person does not lend money to his fellow relying on its responsibility. Therefore, movable property is called in our Mishna “property that does not have responsibility.”

a.

Property that has responsibility

[land]

is acquired with money,

which the purchaser gives the seller as the price of the land or even part of it.

And

so

with a document,

in which the seller writes to the purchaser, “My field is sold to you.”

And

so

through possession,

in that the purchaser takes possession of the land, for example, by locking the gate of the field, or by fencing it, or by making any breach in its fence — each of these ways is considered “possession,” and he acquires the land. b.

Property that does not have responsibility

[movable property]

is not acquired

through any of the acquisitions mentioned above,

but through pulling.

When do these words apply? When he comes to acquire movable property by itself.

But if he comes to acquire movable property and land together, he need not perform pulling with the movable property, but—

Property that does not have responsibility

[movable property]

is acquired together with property that has responsibility

[land]

through money, through a document, and through possession.

That is to say: If he acquired the land through one of these three acquisitions, the movable property is acquired along with it.

c. As an incidental matter, the Mishna brings here another law similar to this:

We learned in tractate Shevuot [42b]: One does not swear concerning land. That is to say: One does not obligate a person to swear to his fellow concerning land that he claims from him.

And

when do these words apply? When he claims land alone. But if a person claims from his fellow land and movable property, and they obligated him to swear concerning the movable property, then—

drag along

drag the

property that does not have responsibility

[the movable property]

along with the property that has responsibility

[the land]

to swear

also

concerning them

[concerning the land].

Gemara:

We learned in the Mishna: Property that has responsibility is acquired through money, and so on.

And we raise the following question:

From where do we know acquisition through money?

From where did we learn that land is acquired through money?

Hezekiah said: The verse says

[Jeremiah 32:44]:

“Fields shall be purchased with money.”

And we challenge this:

And say that it is only when there is a document,

say that money does not acquire by itself unless there is also a document with it,

for

it is indeed

written

there: “Fields shall be purchased with money

and written in a document”

[a deed]

and sealed.”

And why is land acquired through money by itself?

And we answer:

If “they shall be purchased” were written

at the end

of the verse,

at the end of the verse, after the document had been mentioned, then it would have been appropriate to say

as you say,

that money does not acquire until there is a document with it.

But

now

[at present]

that “they shall be purchased” is written at the beginning,

before the document was mentioned, it therefore implies that the acquisition is effected with money alone, and

money acquires.

Whereas

the document

that was mentioned in the verse

is merely evidence,

that the seller gave the purchaser a document as evidence, so that he could prove that the land was acquired by him through money.

Thus far, it has been explained from where the Mishna learned that land is acquired through money.

Rav said: They taught

in our Mishna that land is acquired through money by itself

only in a place where they do not write the document,

in a place where it is not customary to write a deed of sale.

However, where it is customary to write a deed, the buyer does not acquire the property

by paying money alone. Since people in that place customarily write a deed, the buyer does not firmly resolve to acquire the property until he receives the deed in his hands, and his primary intention is to acquire it through the deed. ,

But if he explicitly stipulated—

then his stipulation is effective.

If, when giving the money, the buyer stipulated, saying: “If I wish, I will acquire it with my money, and if I wish, I will acquire it with my deed,” his stipulation is effective. , The following discussion of the Gemara—the Talmudic discussion of the Mishna—will explain what the buyer gained through this stipulation:

This is like [כמו]

as the case

of Rav Idi bar Avin: when he purchased land,

when he was buying land,

he said

to the sellers:

“If I wish, I will acquire it with the money.

If I wish, I will acquire it with the deed.” [אם ארצה לקנות בכסף - אקנה בו, ואם ארצה לקנות בשטר - אקנה בו]“If I wish to acquire it with the money, I will acquire it with the money; and if I wish to acquire it with the deed, I will acquire it with the deed.”

If I wish to acquire it through money, I shall acquire it through money; and if I wish to acquire it through a deed, I shall acquire it through a deed].

The Gemara explains Rav Idi bar Avin’s statement:

“If I wish, I will acquire it with the money”

means:

“For if

you wish to retract, you will not be able to retract.”

If you, the sellers, wish to retract before delivering the deed, you will not be able to retract, because I will tell you that I wish to acquire the property with the money, and it will follow that the land has already been acquired by me.

And “If I wish, I will acquire it with the deed”

means:

“For if I wish to retract, I will retract.”

If I wish to retract before receiving the deed, I can retract and tell you that I do not wish to acquire the property with money, but only with the deed. It will follow that the land has not yet been acquired by me, and I have the right to retract.

We learned in the Mishna: Movable property, which is not secured to the land, is acquired with money

and with a deed.

And we ask:

From where do we know

that movable property is acquired with a deed?

Earlier, the Gemara explained that a field is acquired with money because it is stated [Jeremiah 32:44], “Fields shall be purchased with money.” If so, seemingly we could also derive acquisition through a deed from that same verse, since the continuation of the verse states, “And write it in a book [in a deed] and seal it.” But the Gemara rejects this:

If you say

that a field is acquired through a deed

because it is written, “And write it in a book and seal it, and have witnesses testify,”

then one can raise the following difficulty:

But you said

earlier that the deed mentioned here

is merely a deed serving as evidence,

and the field was acquired only with money! How, then, can we derive from this that a deed effects acquisition?

And we answer:

Rather,

the law of acquisition through a deed must be derived

from here [מכאן], from the verse [Jeremiah 32:11]:

from this passage], from what is stated [Jeremiah 32:11]:

“And I took the deed of acquisition.”

Since Scripture calls the deed “the deed of acquisition,” it is clear from here that the deed itself can effect the acquisition of the field.

This concludes the explanation of the source for the law of acquisition through a deed.

The Gemara now explains that there are cases in which a field is not acquired through the deed alone:

Shmuel said: They taught

in our Mishna that a field is acquired through the deed alone

only with a deed of gift,

when a person gives his fellow a field as a gift and writes him a deed for it.

But in a sale,

when one comes to purchase a field from his fellow,

he does not acquire it

through a bill of sale

until he gives him

for it

money.

Because the seller does not firmly resolve to transfer the field until he receives the money. ,

Rav Hamnuna raises an objection

from a beraita—a tannaitic source not included in the Mishna—contradicting Shmuel’s statement:

“With a deed,”

which they stated in our Mishna,

how

is this accomplished?

If he wrote for his fellow

for his fellow

on paper or on a shard,

even

though they are not worth a peruta,

“My field is sold to you,” or “My field is given to you,” the field is sold or given,

as will be explained immediately.

The Gemara initially understood the beraita to mean as follows:

“If he wrote for him, ‘My field is sold to you,’” this refers to a sale; or, “My field is given to you,” this refers to a gift. “The field is sold or given”: if it was a sale, it is sold, and if it was a gift, it is given as a gift.

It follows that the beraita contradicts Shmuel’s statement. Shmuel said that a deed does not effect acquisition in a sale, whereas we learned in the beraita that if one wrote for the other, “My field is sold to you,” the recipient acquires it—that is, in a sale, as explained above!

Rav Hamnuna himself resolves Shmuel’s statement:

He raises the objection,

Rav Hamnuna is the one who raised the difficulty against Shmuel’s statement,

and he

himself also

he resolves his own difficulty]:

The beraita is speaking

about one who sells

his

field because of its poor quality.

In this case, Shmuel agrees that the deed alone effects acquisition, because the seller is pleased to transfer his field through a deed, so that the buyer will not be able to retract from the purchase.

Rav Ashi said

another answer to Rav Hamnuna’s difficulty:

Rav Hamnuna understood from the wording of the beraita, “He wrote for him, ‘My field is sold to you,’” that it was speaking about a sale. And the continuation, “My field is given to you,” referred to a gift. Thus, the beraita said: He wrote for him [in a sale], “My field is sold to you,” or he wrote [in a gift], “My field is given to you”; the field is sold [or] given. Since it was speaking about a sale, Rav Hamnuna raised this as an objection to Shmuel, who said that a deed does not effect acquisition in a sale.

But Rav Ashi explains that the entire beraita is speaking about a gift, and that it concerns only one act: a person wrote to his fellow, “My field is sold to you; my field is given to you,” and

he wished to give it to him as a gift,

and it is not speaking about a sale at all.

And why did he write for him

also

the language of a sale ['שדי מכורה לך'], even though he intended only to give him a gift,

“My field is sold to you”], even though he intended only to give it as a gift?

in order to strengthen his rights

of the recipient of the gift, so that he would receive the field as a gift together with the additional rights that exist in a sale, as follows:

If Reuven sold his field to Shimon, and the field was pledged to Reuven’s creditor, and Reuven’s creditor came and took it from Shimon, Shimon can then return to Reuven and collect from him the money he paid for it.

But if Reuven gave his field to Shimon as a gift, and a creditor came and took it from him, Shimon cannot collect anything from Reuven, since he paid him nothing for the field.

Accordingly, the words of the beraita can be understood as follows: It is speaking about a person who gave a field to his fellow as a gift and wrote for him, “My field is sold to you for such-and-such an amount, and my field is given to you.” He intended to strengthen the recipient’s rights, so that if his creditor were to come and take the field from him, the recipient of the gift could return and collect from him the amount specified in the deed, as though this had been a sale for which he had paid money. , We learned in the Mishna: Movable property, which is not secured to the land, is acquired

through possession.

And we ask about this:

From where do we know

that a field is acquired through possession?

Hezekiah said: The verse states [Jeremiah 40:10]:

Gedaliah son of Ahikam said to people who had fled to the fields out of fear of the Chaldeans

“And dwell in your cities that you have captured.”

And the Sages interpreted the verse as follows:

Through what did you capture them?

Through settling in them.

That is, by fulfilling what is stated, “Dwell in your cities,” you will fulfill the words, “that you have captured”—you will acquire them through this act. ,

A tanna—a Sage of the Mishnaic era—of the school of Rabbi Yishmael taught [תנא שלמד בבית מדרשו של רבי ישמעאל שנה]a different reason why a field is acquired through possession:

a tanna who studied in Rabbi Yishmael’s house of study taught] another reason why a field is acquired through chazaka:

as it is stated [Deuteronomy 11:31]:

“And you shall inherit it

the Land of Israel]

and dwell in it.”

And the Sages expounded:

By what means did you “inherit”

the land and merit it?

By dwelling!

We learned in the Mishna:

And

assets

that do not have responsibility are acquired only through pulling.

The Gemara assumed that our Mishna is dealing with acquisitions that are effective by Torah law, and comes to say that movable property is acquired through pulling, but not through money, a document, or hazaka.

And we raised the question:

From where do we know,

from where do we know that movable property is acquired through pulling?

And we answered:

For it is written

[Leviticus 25:14]:

“And when you sell a sale to your fellow, or buy from the hand of your fellow.”

And the Sages expounded from the word “hand” that the verse comes to say that it is speaking of

an object acquired from hand to hand,

that is, through pulling.

Accordingly, the acquisition of “pulling” mentioned in our Mishna is an acquisition by Torah law.

However, in tractate Bava Metzia [47b], the amoraim disagreed as to what acquisition is effective with regard to movable property by Torah law:

Reish Lakish said: Pulling is explicitly [stated] in the Torah, as it is stated, “or buy from the hand of your fellow”—an object acquired from hand to hand.

Whereas Rabbi Yohanan said: By Torah law, only money acquires movable property, but not pulling.

It follows that what we said above—that the acquisition through pulling is learned from the verse “or buy from the hand of your fellow”—is according to the view of Reish Lakish.

And we objected:

But according to Rabbi Yohanan, who says, “By Torah law money acquires,” what is there to say?

Why did we learn in our Mishna that movable property is acquired through pulling and not through money? For according to his words, by Torah law movable property is acquired through money!

And we answered:

The tanna taught a rabbinic ordinance.

The tanna taught in our Mishna the acquisition of movable property as the Sages instituted it: the Sages nullified acquisition through money and said that movable property is acquired only through pulling.

We learned in the Mishna:

Assets that do not have responsibility

movable property] are acquired together with assets that have responsibility [land] through money, a document, and hazaka [through the acquisition of agav].

And we raised the question:

From where are these words,

from where did we learn the acquisition of “agav”?

Hezekiah said: The verse states

concerning the sons of Jehoshaphat [II Chronicles 21:3]:

“And their father gave them many gifts,

silver, gold, and delicacies [all of these are movable property]

together with fortified cities in Judah.”

That is, the movable property mentioned at the beginning of the verse was acquired by them through agav of the fortified cities, which their father transferred to them through acquisition by document and acquisition by hazaka. ,

They raised a question before them,

the members of the academy were uncertain: Is it the case that

we require [the movable property to be] gathered,

is it necessary that the movable property acquired through agav of the field be lying in it,

or not

is it not necessary that it be lying in it?

Come and hear,

come and hear a proof from a Mishna that it is not necessary that it be gathered:

We learned in the Mishna

Rabbi Akiva says: Land,

even

any amount,

the following laws were stated with regard to it: