Kiddushin 26a (כו.) — the Talmud in English

Alternatively,

another way of acquiring an elephant is to acquire it

by

lifting. For example, one places on the ground

bundles of branches

that are three handbreadths higher than the ground, and the buyer leads the elephant onto them. Once the elephant climbs onto them, it is three handbreadths above the ground, and one who lifts an object three handbreadths above the ground acquires it through the act of lifting.

Mishna:

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

Land is called in the Mishna “property that has liability,” because a person who lends money to another relies on its liability, since it remains in its place

forever. Movable property, by contrast, can be lost or burned, and the borrower can also conceal it; a person does not lend money to another relying on its liability. Therefore, movable property is called in our Mishna “property that has no liability.”

a.

Property that has liability

(land)

is acquired with money,

which the buyer gives the seller as the price of the land, or even as part of its price.

And

likewise

with a document,

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

And

likewise

through possession,

when the buyer 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 methods is considered “possession,” and through it he acquires the land. b.

Property that has no liability

(movable property)

is not acquired

through any of the modes of acquisition mentioned above,

but only through pulling.

When does this apply? When one comes to acquire movable property by itself.

But if one comes to acquire movable property and land together, he need not perform pulling with regard to the movable property; rather—

Property that has no liability

(movable property)

is acquired together with property that has liability

(land)

through money, through a document, and through possession.

That is, if he acquired the land through one of these three modes of acquisition, the movable property is acquired along with it.

c. Incidentally, the Mishna brings here another law of a similar nature:

We learned in tractate Shevuot [42b]: One does not take an oath concerning land. That is, a person is not obligated to swear to another concerning land that the latter claims from him.

And

when does this apply? When he claims land alone. But if a person claims land and movable property from another, and the latter was obligated to take an oath concerning the movable property, then—

compel

drag along the

property that has no liability

(the movable property)

to

(the land)

take an oath

even

concerning them

(concerning the land).

Gemara:

We learned in the Mishna: “Property that has liability 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?

Ḥizkiya said: The verse states

[Jeremiah 32:44]:

“Fields shall be purchased with money.”

And we challenge this:

Perhaps [the verse means] only once there is a document,

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

for

this is what

is written

there: “Fields shall be purchased with money

and a document shall be written

[a deed]

and sealed.”

Why, then, is land acquired through money alone?

And we answer:

Had it been written, “

shall be purchased”

at the end,

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

as you say,

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

But

now

[at present]

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

before the document is mentioned, it follows that the acquisition is effected through money alone, and

money acquires.

Whereas the

document

mentioned in the verse

is merely evidence,

that the seller gave the buyer a document as evidence, so that he could prove that the land had been acquired through money.

This concludes the explanation of the source from which the Mishna learned that land is acquired through money.

Rav said: They taught

in our Mishna that land is acquired through money alone

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

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

However, in a place where they customarily write the deed, the purchaser does not acquire it

through money alone. Since they are accustomed to writing a deed, the purchaser does not fully resolve to acquire it until he receives the deed into his possession and his primary intention is to acquire it through the deed. ,

And if he stipulated—

he stipulated.

If the purchaser stipulated at the time he gave the money, saying, “If I wish, my money shall effect the acquisition for me, and if I wish, my deed shall effect the acquisition for me,” his stipulation is effective. , The following passage of the Gemara will clarify what the purchaser gained through this stipulation:

This is like [

that is, like]

Rav Idi bar Avin: when he purchased land,

when he would purchase land,

he would say

to the sellers:

“If I wish, I shall acquire it through the money.

If I wish, I shall acquire it through 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 the words of Rav Idi bar Avin:

“If I wish, I shall acquire it through the money,”

that is:

if

you wish to retract, you cannot retract.

If you, the sellers, wish to retract before the deed is delivered, you cannot retract, because I will tell you that I wish to acquire it through money, and it follows that the land has already been acquired by me.

And “If I wish, I shall acquire it through the deed,”

that is:

if I wish to retract, I shall retract.

If I wish to retract before I have received the deed, I may retract and tell you that I do not wish to acquire it through money, but only through the deed. It follows that the land has not yet been acquired by me, and I am able to retract.

We learned in the Mishna: Property that does not serve as security is acquired through money

and through a deed.

And we ask:

From where

do we know that it is acquired through a deed?

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

then this can be challenged:

But you said

earlier that the deed mentioned here

is merely a deed of evidence,

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

And we answer:

Rather,

the law of a deed must necessarily be derived

from here [

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 evident from here that the deed itself can effect the acquisition of the field.

This concludes the explanation of the source of the law of a deed.

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

Shmuel said: They taught

in our Mishna that a field is acquired through a deed by itself

only with a deed of gift,

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

But in a sale,

when one comes to purchase a field from his fellow,

he does not acquire it

through a deed of sale

until he gives him

for it

money.

This is because the seller does not fully resolve to transfer ownership of the field until he receives the money. ,

Rav Hamnuna raised an objection

to Shmuel’s words from a beraita, as it is taught:

“Through a deed,”

as stated in our Mishna,

how

is this accomplished?

If he wrote him

for his fellow

on paper or on earthenware,

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 assumed that the beraita meant as follows:

“If he wrote him, ‘My field is sold to you,’” in a sale, or “‘My field is given to you,’” as 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 words of the beraita contradict Shmuel’s words. Shmuel said that a deed does not effect acquisition in a sale, whereas we learned in the beraita that if he wrote him, “My field is sold to you,” he acquires it—which refers to a sale, as explained above!

Rav Hamnuna himself resolves Shmuel’s words:

“He raised the objection,

Rav Hamnuna was the one who raised the difficulty against Shmuel’s words,

and he

himself also

resolved it” [

he resolves his own difficulty]:

The beraita is speaking

of one who sells

his

field because of its disadvantage.

In this case, Shmuel agrees that a deed by itself effects acquisition, because it is advantageous for the seller to transfer ownership of his field through a deed, so that the purchaser cannot 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 him, ‘My field is sold to you,’” that the case was one of a sale. What is stated subsequently, “My field is given to you,” refers to a gift. Thus, the beraita stated: He wrote him [in a sale], “My field is sold to you,” [or he wrote, in the case of a gift], “My field is given to you”; the field is sold [or] given. Since the case appeared to involve a sale, Rav Hamnuna challenged Shmuel from here, as Shmuel said that a deed does not effect acquisition in a sale.

However, Rav Ashi explains that the entire beraita concerns a gift, and that it deals with a single act: a person wrote to his fellow, “My field is sold to you; my field is given to you,” and

he sought to give it to him as a gift,

not as a sale at all.

And why did he write him

also

the language of a sale [

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

In order to enhance his power,

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

If Reuben sold his field to Simeon, and the field was encumbered to Reuben’s creditor, and Reuben’s creditor came and repossessed it from Simeon, Simeon can then collect from Reuben the money he had paid for it.

But if Reuben gave his field to Simeon as a gift, and a creditor came and repossessed it from him, Simeon cannot collect anything from Reuben, since he had paid him nothing for the field.

Accordingly, the words of the beraita can be understood as follows: the case is of a person who gave a field to his fellow as a gift and wrote him, “My field is sold to you for such-and-such an amount, and my field is given to you.” He intended to enhance the recipient’s rights, so that if his creditor came and repossessed it 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: Property that does not serve as security is acquired

through chazaka.

And we ask about this:

From where,

do we know that a field is acquired through chazaka?

Hezekiah said: The verse says [

Jeremiah 40:10]: Gedaliah son of Ahikam said to the people who had fled to the field out of fear of the Chaldeans,

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

And the Sages interpreted the verse as follows:

By what did you “take” them?

By dwelling.

That is, by fulfilling what is stated, “Dwell in your cities,” “that you have taken” will be fulfilled with regard to you—you will acquire them through this dwelling. ,

The school of Rabbi Yishmael taught [

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 you shall settle in it."

And the Sages expounded:

By what means did you “inherit”

the land and gain possession of it?

By settling in it!

We learned in the Mishna:

and

property

that does not have responsibility attached to it is acquired only by pulling.

The Gemara assumed that our Mishna is discussing modes of acquisition that are effective by Torah law, and is stating that movable property is acquired by pulling, but not by money, by a document, or by possession.

And we asked:

From where do we know this,

that movable property is acquired by pulling?

And we answered:

As it is written

[Leviticus 25:14]:

“When you sell anything to your fellow, or acquire it from the hand of your fellow.”

And the Sages derived from the word “hand” that the verse is stating that this refers to

an item acquired from hand to hand,

that is, by pulling.

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

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

Reish Lakish said: Pulling is explicitly established by the Torah, as it is stated: “or acquire it from the hand of your fellow”—an item acquired from hand to hand.

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

It follows that what we stated above—that the acquisition by pulling is derived from the verse “or acquire it from the hand of your fellow”—follows the view of Reish Lakish.

And we objected:

But according to Rabbi Yohanan, who says, “By Torah law, money acquires,” what can be said?

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

And we answered:

The tanna taught the 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 by pulling.

We learned in the Mishna:

Property that does not have responsibility attached to it

[movable property] is acquired together with property that has responsibility attached to it [land], through money, by a document, or through possession [by acquisition through agav].

And we asked:

From where are these matters

derived with regard to acquisition through “agav”?

Hezekiah said:

The verse says

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

“And their father gave them many gifts,

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

together with fortified cities in Judah.”

They raised a question:

The members of the academy were uncertain:

Must they be accumulated,

that is, must the movable property acquired through the land be situated in it,

or not

—must it be situated in it?

Come and hear:

Come and hear a proof from a Mishna that it need not be accumulated:

We learned in the Mishna

Rabbi Akiva says: Land,

even

any amount,

the following laws were stated concerning it: