1) A SALE OF MERCHANDISE IN THE HANDS OF A THIRD PARTY

OPINIONS: The Beraisa discusses the mechanics of acquisition in various situations. In one of these situations, a buyer and seller agree upon the terms of the sale, but the merchandise is in the hands of a third party (with whom the seller stores his merchandise). The Beraisa says that in this case, the merchandise does not change ownership "until he accepts upon himself or until he rents the place."

The meaning of the words, "until he rents the place," is clear; the buyer must rent the area where the goods are stored in order for that area to acquire the goods for him through Kinyan Chatzer. What is the meaning of "until he accepts upon himself"?

(a) The RASHBAM (DH Ad she'Yekabel) explains that these words mean that the third party accepts upon himself to designate the area underneath the goods as the area of the buyer.

TOSFOS (DH Arba) has difficulty with this explanation. It is unlikely that the seller can simply ask the third party to designate his property for the buyer. The land underneath the goods must legally belong to the buyer in order for a Kinyan Chatzer to take effect. Such a transfer of property needs some form of Kinyan in order to take effect. Tosfos proves this from the Gemara in Eruvin (79b) which clearly states that in order for a person to transfer ownership of property to someone else, a valid Kinyan is necessary. (See also RITVA.)

(b) TOSFOS therefore explains that these words mean that the third party accepts upon himself to acquire the goods via his own Kinyan Chatzer on behalf of the third party. In short, he acquires the item on be half of the buyer.

The AYELES HA'SHACHAR makes an interesting inquiry into the opinion of the Rashbam. If, as the Rashbam writes, one's declaration that he is transferring an area to someone else's possession is valid such that the area now serves as the beneficiary's Chatzer, can a Get also be given in this manner?? A man who wants to divorce his wife should merely transfer part of his Chatzer to his wife's ownership, and then he should throw the Get into that part of the Chatzer. The transaction should be valid and, mid'Oraisa, the woman should be divorced.

The Ayeles ha'Shachar suggests that in this case the Rashbam may agree that the Get is not valid. The Gemara here implies that a person can transfer the ownership of a Chatzer to someone else in order that the recipient be able to use it to make a Kinyan Chatzer that he wants to make. One cannot transfer the ownership of a Chatzer to someone else (such as his wife) in order to force the recipient to accept something (such as a Get).

However, perhaps if the woman wants the divorce but is not in town to receive it, why should the husband not be able to transfer ownership of his Chatzer to her and place the Get in the Chatzer? The Ayeles ha'Shachar answers that it is possible that the transfer of the Chatzer works only to acquire an object that has intrinsic value, but not an object of extrinsic value (that is, the Get has value not because of the actual piece of paper on which it is written, but because of the words written on it which give the woman the status of a divorcee). The Ayeles ha'Shachar does not resolve the question. (Y. MONTROSE)

2) DOES "PASAK U'MADAD" SUFFICE?

OPINIONS: The Gemara quotes a Beraisa which discusses the case of a person who sees a group of merchants and their workers carrying their merchandise, and he shows intentions of making a transaction. If the person brings the workers into his house, the transaction is not considered final if either a price was not set ("Pasak") on the merchandise, even though the buyer weighed out ("Madad") the merchandise, or the buyer did not weigh out the merchandise, even though the price was set. The Beraisa explains that this applies only when the merchandise was not unloaded from the donkeys. If the merchandise was unloaded and a price was set, then even if the merchandise was not weighed, the agreement must be honored. If the merchandise was only weighed but a price was not set, both parties may retract from the deal.

The first case of the Beraisa discusses a case in which only one of two things was done: a price was set, or the merchandise was weighed. Does the Beraisa imply that if both things would be done ("Pasak" and "Madad"), the transaction would be valid?

(a) TOSFOS (DH Bein) writes that this is not the implication of the Beraisa. Tosfos maintains that an essential part of the acquisition is that the merchandise must be unloaded from the workers or the donkeys. If the merchandise is not unloaded, the buyer is not able to acquire it since it has not left the seller's domain. Tosfos understands that the fact that the buyer brings the workers or donkeys into his domain does not mean that his domain acquires the merchandise for him. Since the merchandise is more prominently in the hands of the workers, the buyer's Chatzer cannot acquire it for him. There is no form of acquisition performed by pulling, lifting, or doing any other act of Kinyan when one's intent is to acquire an object which is in the physical possession of a person or animal whom the buyer does not intend to acquire.

(b) RASHI in Avodah Zarah (72a, DH Ad she'Lo) states that once there is both "Pasak u'Madad," the buyer's domain is able to acquire the item automatically on his behalf. How does this work? The MAHARSHA in Avodah Zarah there explains that Rashi understands the Beraisa differently from the way we understood it until now. According to our initial understanding of the Beraisa, the difference between the case of the beginning of the Beraisa and that of the end of the Beraisa is whether or not the goods have been unloaded from the workers or donkeys. The Maharsha explains that, according to Rashi, in both cases the goods have been unloaded from the workers or donkeys. In the first case, the definition of "Madad" is that the buyer weighed the merchandise and set it down in his domain. Even though he actually placed the merchandise in his domain, the deal is not consummated unless a price has also been set ("Pasak"). In the case of "Pasak u'Madad," since the merchandise is now in the domain of the buyer, his domain can make the acquisition on his behalf.

Rashi understands that in the next case of the Beraisa, the merchandise is unloaded first, before any weighing or price-setting takes place. According to Rashi, this is why, in the second case of "Pasak," the Kinyan takes effect right away even without weighing. The merchandise is ready to be acquired by the buyer since it is in his possession.

This explanation also seems to be the intent of the RASHBAM (DH Bein Pasak). (Y. MONTROSE)