ט״ו בשבט ה׳תשע״ו (January 25, 2016)

Gittin 43a-b: An Entity that has Not Yet Come Into the World

The Gemara on our daf deals with the question of whether a slave owner can sell the potential possibility that his slave will become injured and will have an income of kenas – penalties – that will be paid to the master. This question is presented as a situation of adam makneh davar she-lo ba la-olam.

One of the basic questions that comes up regarding issues of ownership in Jewish law is “Adam makneh davar she-lo ba la-olam” – whether or not a person can buy or sell an object that is not in existence right now. R Naḥman bar Yitzḥak believes that, according to Rabbi Akiva, a person has the ability to do so and lists tannaim and amoraim who follow that approach.

The simplest way to understand this approach is to say that we view an object that is expected to be seen (e.g. fruits that have not yet appeared on the tree, or a purchase that has not yet been completed) as already in existence from a legal standpoint. Thus, the seller can transact business with it, either by stipulating that the sale go into effect immediately or that it take place at some later date. In bringing examples, the Gemara in Massekhet Yevamot (daf 93) offers both types of cases. Rav’s case has the seller saying “I am selling this field, and when the purchase is complete, it will belong to you from now.” In Rav Huna’s case the seller says “I am selling you the dates on this tree.” It is clear that the sale will not be complete until the fruit actually appears, which is why Rav Huna allows the seller to back out of the deal – until the fruits appear.

Another case that appears in Yevamot is that of Rabbi Yannai, who had a tenant on his land who paid him by delivering fruit every Friday. One Friday the tenant did not arrive at the usual time, and Rabbi Yannai – relying on the fact that the fruit would be delivered – chose to separate tithes from other fruit that he had in his house so that he would be able to eat the fruit from his tenant on Shabbat. When he turned to his teacher Rabbi Hiyya to ask about this, Rabbi Hiyya agreed that his behavior was correct. The proof from this story is that neither Rabbi Yannai nor Rabbi Hiyya appear to be concerned with the fact that the fruit had not been delivered. Their concern was whether or not tithes could be taken when the fruit was not all together.

*Notably, today is Tu BiShvat – in the harvest calendar it marks the initial formation of the fruit, which determines what kinds of tithes should be given and when the year’s harvests would subsequently begin. Read Rabbi Steinsaltz’s essay on Tu BiShvat.

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