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Avodah Zarah, 71
AVODAH ZARAH 69-71 - Three Dafim have been sponsored through the generous
grant of an anonymous donor in Flatbush, NY.
1) HALACHAH: "KINYAN MESHICHAH" FOR A NOCHRI
OPINIONS: The Gemara records the view of Ameimar who rules that the act of
Meshichah is a valid Kinyan for a Nochri. Rav Ashi refutes Ameimar's proof.
What is the Halachah in practice?
Actually, this question can be asked with regard to the Kinyan of Meshichah
for a Jew. The Gemara in Bava Metzia (47b) records a Machlokes between Rebbi
Yochanan and Reish Lakish regarding which Kinyan the Torah prescribes for a
Jew who wants to acquire Metaltelin. Rebbi Yochanan maintains that
mid'Oraisa a Jew is able to acquire Metaltelin through Kinyan Kesef but not
Meshichah, and the Rabanan instituted the Kinyan of Meshichah. Reish Lakish
argues that mid'Oraisa a Jew can acquire Metaltelin through Meshichah, and
there is no Kinyan Kesef for a Jew.
The Gemara in Bechoros (13a) teaches that just as a Jew has one Kinyan for
acquiring Metaltelin, so, too, a Nochri has one Kinyan for acquiring
Metaltelin. However, the Kinyan of the Nochri is not the same as the Kinyan
of the Jew. From this the Rishonim learn that according to Rebbi Yochanan --
who says that a Jew is Koneh with Kesef -- the Kinyan that the Torah
prescribes for a Nochri is Meshichah. According to Reish Lakish -- who says
that a Jew is Koneh with Meshichah -- the Kinyan that the Torah prescribes
for a Nochri is Kesef (see Insights to Bava Metzia 48:a:4).
Our question, therefore, can be summarized in terms of the Kinyan of a Jew.
Is the Halachah like Rebbi Yochanan, who says that mid'Oraisa a Jew is Koneh
with Kesef, and therefore a Nochri is Koneh with Meshichah, or does the
Halachah follow the view of Reish Lakish, who says that mid'Oraisa a Jew is
Koneh with Meshichah, and thus a Nochri is Koneh with Kesef?
(a) RASHI in Kidushin (14b, DH Ho'il; see also Rashi later on 73a, DH Oved
Kochavim) seems to rule in accordance with Reish Lakish, who says that
Meshichah is a valid Kinyan mid'Oraisa for a Jew but not for a Nochri. The
Gemara there mentions that it is logical that (as the Torah states) an Eved
Ivri can be acquired by a Nochri through money, since all of the Nochri's
acquisitions (of Metaltelin) are effected through money. Rashi explains that
the source for this is that the verse from which we derive the Kinyan of
Meshichah is referring only to a Kinyan made by a Jew, as it says, "Kanoh
mi'Yad *Amisecha*..." -- "[When you...] acquire from the hand of *your
friend*..." (Vayikra 25:14). There is no verse teaching that Meshichah works
for a Nochri, and that is why the Gemara there says that all of a Nochri's
acquisitions are made through the transfer of money.
(b) TOSFOS here (DH Rav Ashi; see also Tosfos in Kidushin 14b, DH Ho'il)
comments that there is a rule (see Yevamos 36a) that whenever Rebbi Yochanan
and Reish Lakish argue, the Halachah follows the view of Rebbi Yochanan,
except in three cases. Accordingly, we cannot follow the view of Reish
Lakish and rule that Meshichah is a valid Kinyan for a Jew, and therefore
Kesef for a Nochri. Rather, Meshichah is a valid Kinyan for a Nochri.
Tosfos addresses the fact that Rava in Bava Metzia (48a) supports Reish
Lakish's opinion with both a verse and a Beraisa. Tosfos points out that the
Gemara refutes conclusively Rava's proofs. In addition, it is evident that
Rava himself does not rule like Reish Lakish. It is Rava himself who states
(in Yevamos 36a) that we rule like Reish Lakish against Rebbi Yochanan only
in three cases, and he does not mention this case as one of the exceptions.
The Gemara later in Avodah Zarah (72a) also concludes that Meshichah works
for a Nochri (as Rebbi Yochanan rules).
How, though, does Tosfos understand the Gemara in Kidushin that states that
the acquisitions of a Nochri are done through Kesef, and not Meshichah?
RABEINU TAM there answers that when the Gemara says that all of a Nochri's
acquisitions are effected through money, it means that all of a Nochri's
acquisitions of *Jewish slaves* are done through Kesef, as implied by the
verse cited earlier in the Gemara there.
(c) The RAMBAM (Hilchos Zechiyah u'Matanah 1:14) writes that "a Nochri who
sells Metaltelin to a Jew, or buys them from a Jew, acquires them with
Meshichah and relinquishes them [to the Jew] with either Meshichah or the
payment of money." The KESEF MISHNEH and MAGID MISHNEH understand that the
Rambam's statement, "or the payment of money," is also referring back to the
first part of his ruling, meaning that a Nochri may also *acquire* objects
with Kesef. They explain that when the Gemara asks whether or not Meshichah
works for a Nochri, it is actually asking whether or not *even* Meshichah
works for a Nochri, but certainly Kinyan Kesef works for a Nochri (this
explanation of the Gemara clearly conflicts with the Gemara in Bechoros; the
Magid Mishneh says that the Gemara here argues with the Gemara in Bechoros,
and we rule in accordance with our Gemara). The LECHEM MISHNEH, on the other
hand, understands the Rambam's words literally, and the Rambam is saying
that a Nochri cannot acquire with Kesef. According to the Lechem Mishneh,
the Rambam rules in accordance with the simple understanding of Tosfos, that
a Nochri can acquire only with Meshichah.
Because of this dispute among the Poskim regarding what Kinyan is valid for
a Nochri, the accepted solution is to use both methods of acquisition when
dealing with a Nochri, such as when selling Chametz to a Nochri before
Pesach (see HAGAHOS ASHIRI 5:2, MORDECHAI to Bava Metzia 4:302, and SHULCHAN
ARUCH YD 320:6). The MISHNAH BERURAH (OC 448:17) also writes that one should
perform both methods of acquisition, but he states that at least one should
do Meshichah, since that Kinyan is the one of the two Kinyanim which works
according to most Poskim (see TESHUVOS HA'REMA #87, CHOK YAKOV OC 448:14).
However, if someone sold his Chametz using only the method of Kesef (or
other methods of Kinyan besides Meshichah which are valid according to some
opinions), he would be allowed to benefit from the Chametz after Pesach.
Since the prohibition against eating Chametz owned by a Jew during Pesach is
only a penalty mid'Rabanan, one may rely on the opinion that Kesef is a
2) HALACHAH: "KINYAN CHATZER" FOR A NOCHRI
OPINIONS: The Gemara asks that when wine is poured into a Nochri's container
which is resting on the ground, the wine is immediately acquired by the
Nochri when it enters the container. Through what type of Kinyan, though,
does the Nochri acquire the wine?
(a) The MEKOR CHAYIM (OC 448) quotes the ASIFAS ZEKENIM in Bava Metzia (11a)
who says that the acquisition of an object placed in one's vessel is
included in Kinyan Chatzer. Just as an object placed in a person's Chatzer
becomes the property of the owner through Kinyan Chatzer, so, too, an object
placed in a person's vessel. The fact that this method of acquisition works
through the mechanism of Kinyan Chatzer is also stated by the RAMBAN,
RASHBA, RITVA and other Rishonim in Bava Metzia (9b). The Mekor Chayim
proves from the question of our Gemara that a Kinyan Chatzer is Halachically
binding for a Nochri. This also seems to be the opinion of the ROSH in
Bechoros (1:2), the TUR, and the SHULCHAN ARUCH (YD 320:6). Based on these
opinions, RAV MOSHE FEINSTEIN zt'l (in IGROS MOSHE, YD 2:143) concludes that
in a pressing situation one may rely on the Kinyan Chatzer together with
(b) The GILYON MAHARSHA and IGROS MOSHE (ibid.) deduce from TOSFOS (71a, DH
Rav Ashi) that a Kinyan Chatzer does not work for a Nochri. Tosfos discusses
the proper method to be used in order to give a Nochri possession of an
animal which is pregnant with its firstborn (this transfer of ownership is
made in order to avoid the Kedushah of Bechor that would take effect if the
animal gives birth while in the possession of a Jew). Tosfos states that the
Jew should make sure that he receives money and that a proper Meshichah is
done, bringing the animal into the domain of the Nochri. If the Nochri has
no domain into which to pull the animal, then the Jew should give him some
of his own property and let the Nochri pull the animal into that domain.
These Acharonim point out that if Tosfos was of the opinion that a Kinyan
Chatzer works for a Nochri, then he would not have required the Nochri to
*pull* (Meshichah) the animal into his domain. His Chatzer would have been
able to be Koneh the animal merely by the animal entering the Chatzer on its
own, or by being placed there by the seller. It seems, therefore, that
Tosfos maintains that Kinyan Chatzer does not work for a Nochri.
The TESHUVOS PNEI YEHOSHUA (OC 2:5) similarly writes that a Nochri has no
Kinyan Chatzer, and he refutes the proof of the Mekor Chayim. He explains
that the only reason why the Gemara here implies that a Kinyan Chatzer works
for a Nochri is because it is Rav Ashi who is discussing the issue. Rav Ashi
in Bava Metzia (71b) maintains that a Nochri is able to act as a Shali'ach
for a Jew. According to one opinion in Bava Metzia (10b; see Insights
there), a Kinyan Chatzer works because of the concept of Shelichus, with the
Chatzer serving as a "Shali'ach" for its owner to acquire the object placed
there. Hence, only according to Rav Ashi could a Kinyan Chatzer work for a
Nocrhi. The Halachah, though, follows the other opinions in Bava Metzia who
maintain that a Nochri cannot serve as a Shali'ach (the Gemara there even
calls Rav Ashi's statement a mistake), and thus a Nochri cannot make a
The KETZOS HA'CHOSHEN (CM 195:3) makes this point as well. The NACHALAS
SHIV'AH (#30) quotes the MAHARASH KEIDANOVER who points out that the
practice regarding the sale of Chametz to a Nochri before Pesach is to use
both Kinyan Kesef and Kinyan Shtar in which the Jew transfers to the Nochri
the ownership of the property on which the Chametz is resting. Once the
Nochri owns the land, he also acquires the Chametz through ownership of the
land, which is essentially a Kinyan Chatzer. The Maharash says that he does
not understand how this works with a Nochri, as a Nochri has no Shelichus;
how can he acquire the Chametz through a Kinyan Chatzer which works through
Shelichus? The Ketzos ha'Choshen argues that the Rosh in Bechoros, the Tur,
and the Shulchan Aruch quoted above are not talking about Kinyan Chatzer
(see Igros Moshe, loc. cit., who argues that the Rosh and Tur indeed are
saying that a Nochri has a Kinyan Chatzer). The Ketzos ha'Choshen first
mentions our Gemara as a response to the Maharash's claim and to show that a
Nochri does have a Kinyan Chatzer. However, he concludes -- like the
Teshuvos Pnei Yehoshua -- that our Gemara is discussing only the opinion of
Rav Ashi, who maintains that a Nochri is able to be a Shali'ach. (Y.