- חצר שאינה משתמשרת: If one must stand at the side of his field to acquire
The next Mishnah states: ראה אותן רצין אחר מציאה – If one saw [people] running after a find to acquire it, אחר צבי שבור – after a lame deer, אחר גוזלות שלא פרחו – or after young pigeons that cannot fly, ואמר זכתה לי שדי – and he said, “My field has acquired it for me,” זכתה לו – it has acquired it for him, since they cannot escape his field. If a deer was running normally, or pigeons were flying, his chatzeir cannot acquire them. Rav Yehudah said in Shmuel’s name: והוא שעומד בצד שדהו – His field acquires, provided he is standing at the side of his field. The Gemara wonders why, since Rebbe Yose bar Rebbe Chanina said: חצרו של אדם קונה לו שלא מדעתו – a person’s chatzeir acquires for him even without his knowledge!? It answers that this is only a guarded (i.e., secure) field; אבל חצר שאינה משתמרת – but regarding a field which is not guarded, אי עומד בצד שדהו אין – if he is standing at the side of his field, yes, it acquires (because he guards it); אי לא לא – but if not, not. This distinction is supported by a Baraisa detailing the laws of שכחה.
- קנין אגב אינו צריך משתמרת
This ruling was challenged from a Mishnah: מעשה ברבן גמליאל וזקנים שהיו באים בספינה – There was an incident involving Rabban Gamliel and the elders who were traveling on a ship, and Rabban Gamliel remembered that he had produce at home from which maaser had not been removed. Rabban Gamliel declared that a tenth of his produce which he will later measure out should be maaser rishon, and is given to Rebbe Yehoshua, a Levi, ומקומו מושכר לו – and its place is rented to him, so he may acquire the maaser. Rebbe Akiva acquired maaser ani on behalf of the poor using the same method. Since the Sages were not standing beside Rabban Gamliel’s field, how could they acquire his maaser by renting it?
The Gemara answers that they were not acquiring the produce with chatzeir, but the principle of אגב – alongside the rental acquisition of his property. Rava asked why they did not utilize the kinyan of חליפין – exchange with a kerchief. The Gemara responds that maaser must be “given” ("נתינה"), and חליפין has the appearance of a sale.
- דעת אחרת מקנה
Rav Pappa explains differently how the Sages acquired Rabban Gamliel’s maaser without standing near his field: דעת אחרת מקנה אותן שאני – it is different when another mind (i.e., person) transfers ownership of them to the recipient, and he can acquire even without standing near the chatzeir. He proves this distinction from the fact that Rebbe Yochanan said that one only acquires animals in his chatzeir if he can run and catch them before they leave his field. Yet, Rebbe Abba bar Kahana held that regarding a gift, the recipient can acquire them with his chatzeir even if he cannot catch them before they escape.
Rav Pappa was asked that a get is also given by a דעת אחרת (i.e., the husband), yet Ulla taught that the wife must be standing near her chatzeir for the get placed there to be effective!? Rav Ashi answers that a chatzeir is able to acquire either as an extension of one’s hand, or as a shaliach. A chatzeir cannot acquire a get, which is not necessarily to her advantage, in a shaliach capacity. To operate as her “hand,” she must be nearby, similar to her hand. A gift, however, which is to the recipient’s benefit, can be acquired with a chatzeir as a shaliach, so he need not be nearby.
