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Shiur #04: Kinyan Chatzer as a Form of Yad

  • Rav Moshe Taragin
One of the most intriguing forms of kinyan is known as kinyan chatzer, in which a person acquires an item when it is placed on his property. Most acts of kinyan that are implemented to transfer ownership of an item are physically demonstrative acts that reflect the newfound ownership of the recipient lokei’ach. For example, a purchaser can draw the acquired animal into his reshut, performing meshicha, demonstrating control and signifying that he is the new owner. Additionally, anything firmly clutched in the hand of a person is considered owned by the possessor through a kinyan known as yad. Obviously, in the case of kinyan chatzer, the chatzer itself is not acquiring ownership, but is rather affecting a transition of ownership to the owner of the chatzer. How does this work?
The gemara in Bava Metzia (10b) suggests that a chatzer can operate as a form of shelichut, a well-documented halakhic apparatus allowing actions of one person to effect halakhic changes for a different party. However, viewing chatzer as a form of shelichut has certain limitations. The gemara Bava Metzia (12a) therefore raises another possible mechanism by which a chatzer can acquire an item on behalf of its owner – a chatzer can act as a yad.
What is unclear is how precisely to interpret the analogy between a chatzer and a hand. Is an item contained in a chatzer literally considered grasped within a person’s hand, and thereby acquired? Several gemarot discuss kinyan on items contained within attached baskets or other bodily appendages. The items contained within these physical extensions are considered grasped within a hand, and thus acquired through yad. Does the same apply to chatzer? Do we say that items lodged within a person’s landing zone are considered grasped or contained in his extended hand?
Alternatively, perhaps the gemara intended only to loosely affiliate chatzer with a person’s hand. According to this reading, a chatzer is not considered an extension of a hand, but rather constitutes a different form of kinyan. It is referred to as yad merely to distinguish the relationship of the chatzer to the owner from the apparatus of shelichut. A chatzer does not operate as an extension of yad, but it does represent the owner in ways that differ from shelichut, and the gemara refers to it as yad merely to demarcate it from shelichut.
Several interesting disputes may reflect disagreement about how much a chatzer must resemble a yad. For example, the gemara in Gittin (77b) cites a debate between Ulla and R. Oshiya about a chatzer that is not near its owner. Ulla requires adjacency between an owner and a chatzer and justifies this demand based on the analogy with a hand; just as a hand is adjacent to a person, a chatzer operating as yad must be adjacent. Apparently, Ulla took this association quite literally, insisting that in order for a chatzer to serve as an extension of a person it must resemble a hand. R. Oshiya, in contrast, may not have interpreted the definition of chatzer as yad literally, allowing a chatzer to operate even without physical contiguity, as long as the owner is able to supervise objects lodged in the chatzer.
Another interesting machloket Amoraim (Gittin 21a) relates to a chatzer that was not previously owned by the person utilizing it to acquire an item. Can a seller place the item to be sold in his own chatzer and then transfer ownership of the chatzer to the purchaser, intending that the purchaser utilize his newly acquired chatzer to acquire the contained item? From a purely logistical standpoint, this should be a valid method of acquisition. Ultimately, the item to be sold is found in the chatzer of the would-be lokei’ach. Abaye disagrees, however, claiming that in order for a chatzer to mimic yad, it must be owned by the lokei’ach before being deployed as part of a kinyan. A person’s actual hand is involuntarily associated with him and does not have to be acquired as part of the current transaction. A chatzer that was not previously owned by the lokei’ach and must be acquired as part of the transaction does not parallel an actual hand and cannot operate as an extension of the hand. Evidently, Abaye took the chatzer as yad analogy quite literally and disqualified a chatzer that does not exhibit hand-like tendencies.
A third possible question surrounds a chatzer operating on behalf of a sleeping person. The Rashba Gittin (78) cites the Ra’avad, who claims that a chatzer can effect a kinyan on behalf of a sleeping person, even though he cannot acquire an item with his own hand during this state. The Rashba himself counters that since a sleeping person cannot utilize his hand for a kinyan, he cannot utilize a chatzer, which is an extension of the hand. Evidently, the Rashba read this association between chatzer and yad literally and disqualified chatzer from operating during a period or state in which a hand cannot be effective. Perhaps the Ra’avad interpreted the analogy to a hand less literally and viewed chatzer as an autonomous element capable of enabling a kinyan even when the hand’s capacity for kinyan is impeded.
The need to structure a chatzer on the model of an actual hand may inform a different aspect of chatzer. Several gemarot disqualify a chatzer mehalechet, a moving chatzer, from effecting a kinyan, but none of them explicitly trace the reason for this limitation. Tosafot (Bava Metzia 9b and Gittin 21a) claim that a mobile chatzer is not analogous to a hand, which does not have inherent or independent movement. For a chatzer to represent the owner, it must comprise an extension of the person’s hand. Since a hand is not independently mobile, a chatzer cannot be either.
It is possible that the question of how a chatzer represents its owner as a yad is reflected in the discussion regarding which pasuk serves as the source for kinyan chatzer. The gemara cites Gittin (76) a verse in Parashat Ki Teitzei that describes the delivery of a get with the phrase “ve-natan be-yada” and somehow extrapolates chatzer from this phrase. Tosafot claim that the gemara is deriving chatzer from a kelal u-perat u-kelal – two more generalized phrases bracketing a more particular word. This literary arrangement yields the halakhic conclusion that the precise element (perat) implied by the particular word is not necessary; however, the derivative must resemble the particular word (ke-ein ha-perat). In the context of this pasuk, by bracketing the word yad with general terms, the Torah allows acquisition of a get or other items through a chatzer, because a chatzer is viewed as ke-ein ha-perat – or similar to the word “yad” which is bracketed by two general terms. This form of derivation would suggest that a chatzer serves as an extension of the hand.
By contrast, the Yerushalmi claims that the word yad in the Torah sometimes refers to an actual hand, but also refers to a person’s financial portfolio. By describing the acquisition of a get with the term yad, the Torah allows the get to be deposited in a person’s area, not necessarily into their actual hand. This approach to establishing the validity of a chatzer does not view a chatzer as an extension of hand, but rather as an autonomous kinyan-enabler that happens to be described by the word yad, which sometimes refers to a hand but other times simply refers to an area owned by the acquirer.
Finally, an interesting comment of Rashi may highlight the fact that a chatzer is indeed considered an extension of a person’s hand and its grasp. Alongside the scenario of acquiring a get through a chatzer, the Torah also describes finalizing a theft through a chatzer. Tosafot describe a scenario in which a person actively leads the stolen animal into his chatzer. By contrast, Rashi describes a situation in which someone else’s animal wanders into a person’s chatzer, who then locks the animal in, thereby stealing the item. Rashi depicts a situation in which a theft is committed without performing an action to the stolen animal.
Perhaps Rashi’s view is based on a novel understanding of the act of geneiva: Even without physically removing the item, geneiva is violated any time financial interests are compromised by withholding property. Alternatively, Rashi may be viewing chatzer as a direct extension of a person’s hand. By closing the chatzer and clutching the item in his extended hand, a real act of geneiva has been performed upon the stolen item.