Kiddushin - Daf 26
- Methods for acquiring unmovable and movable property
The next Mishnah states: נכסים שיש להם אחריות – [Unmovable] properties (such as land), which have “responsibility” (meaning creditors rely on them for collection), נקנין בכסף ובשטר ובחזקה – are acquired with money, a document, or chazakah, an act demonstrating ownership. שאין להם אחריות אין נקנין אלא במשיכה – [Movable] properties are only acquired with drawing them near. The Gemara will explain that according to Rebbe Yochanan, who says that Biblically, movable possessions are acquired with money, this Mishnah reflects the Rabbinic enactment to acquire them with משיכה. Rav says: לא שנו אלא במקום שאין כותבין את השטר – They only taught that money acquires land in a place where they do not ordinarily write a document for the sale, אבל במקום שכותבין את השטר לא קנה – but in a place where they write a document for the sale, he does not acquire the land until the שטר is given, because the buyer is not confident in the sale until he receives it. Rav adds that the buyer can stipulate to choose which kinyan to use, allowing him to retract before the שטר is given, but if the seller wants to retract, the buyer can say he already acquired the land with the money.
- When a שטר of sale acquires
Shmuel says: לא שנו אלא בשטר מתנה – They only taught that a שטר acquires alone regarding a document of a gift, אבל במכר לא קנה עד שיתן לו דמים – but regarding a sale, he does not acquire it until he gives him money, because the seller does not commit to the sale without receiving payment. Rav Hamnuna challenged him from a Baraisa describing the שטר, which states that if he writes on a paper or shard, שדי מכורה לך – “My field is hereby sold to you,” or שדי נתונה לך – “My field is hereby given to you,” הרי זו מכורה ונתונה – it is sold or given. Clearly, a שטר works alone even for a sale!? He answered: במוכר שדהו מפני רעתה – the Baraisa is discussing one selling his field because of its poor quality. To prevent the buyer from retracting, the seller is willing to complete the transaction before receiving money. Rav Ashi answered that the Baraisa is actually discussing a single case of a gift, and the owner wrote both terms (of selling and gifting) כדי ליפות את כוחו – to enhance [the recipient’s] rights. He commits to compensate the recipient if the land is collected by the first owner’s creditor, as if it was a sale.
- If acquisition of "אגב" requires the items to be in the transacted land
The Mishnah taught that movable possessions can be acquired alongside an acquisition of unmovable property, known as "אגב". This is based on a passuk: ויתן להם אביהם מתנות וגו' עם ערי מצורות ביהודה – And their father gave them gifts etc. together with fortified cities in Yehudah, implying the gifts were acquired automatically with the cities. The Gemara asks: בעינן צבורים או לא – Do we require the movable items to be piled on the land being acquired to include them in the transaction, or not? Can אגב even work to acquire items elsewhere? Rav Yosef quoted a Mishnah stating that קרקע כל שהוא – land of any size is subject to numerous halachos of land, including the ability to acquire movable possessions with it. If אגב requires being on the property, what could be acquired on this tiny land? Rav Shmuel bar Bisna answered: כגון שנעץ בה מחט – where he stuck a needle into [the land], and when Rav Yosef expressed his annoyance at this answer, Rav Ashi clarified he could mean where a pearl worth a thousand zuz was hung from it. The Gemara on the next Daf concludes that אגב works even where the possessions are not on the property.
