כ׳ בניסן ה׳תשע״ז (April 16, 2017)

Bava Batra 84a-b: Taking Ownership

We have learned that there are a number of different ways of performing a kinyan – an act that demonstrates ownership. Even after a buyer and a seller have agreed to a price, and verbally agreed that they want the sale to take place, it is still necessary for the purchaser to perform a kinyan in order to take possession of the object. Generally speaking there are three symbolic acts that can serve this purpose, each of them under different circumstances.

  1. hagbaha – lifting up the object to be purchased
  2. meshikha – pulling an object
  3. mesira – when the object is handed over from the owner to the buyer.

The appropriate kinyan for anything that normally is lifted and can be picked up easily is hagbaha. Only if it is hard to lift the object can it be bought through an act of meshikha. Some things cannot be pulled either; they can be purchased by using kinyan mesira. Hagbaha, which is the most powerful act of ownership, can be performed anywhere, even on the property of the seller. Meshikha works on jointly owned property, or off the public thoroughfare. Mesira will work only in the public thoroughfare or in a place that does not belong to either of them.

According to the Mishna, if the purchaser did an act of hagbaha on fruit that he agreed to purchase, he now owns the fruit even if he did not weigh or measure it. The Rashbam explains that weighing the fruit is necessary only to determine the final price to be paid, but the act of hagbaha creates the kinyan. If, on the other hand, the fruit was weighed and measured but not picked up by the purchaser, he has not taken possession of it. Most of the commentaries agree that if it was the buyer who took the fruits to weigh them, then that act could also serve as a kinyan. The Ra’avad disagrees, arguing that an act of measurement is not a kinyan, even if the fruits are lifted.

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