Saturday, December 12, 2009

Buying and Selling

Which Four Categories?

By: Rabbi Yechezkel Khayyat

The Gemora quoted a braisa that listed four categories of acquisition, which depend on whose utensils and domain are used for the transfer.

The Rashbam explains that categories are the four methods of acquisition:
1. At the end of filling the utensil.
2. As merchandise is placed in the utensil.
3. When merchandise is removed (or when the domain is temporarily transferred, by rental or permission).
4. Whenever seller agrees.

Tosfos (85a Arba) says that the four categories are four utensils that can be used for a transfer:
1. A utensil owned by a broker, which can be used by seller and buyer.
2. The seller’s utensil.
3. The buyer’s utensil.
4. A third party’s utensil, which the buyer must explicitly rent or receive permission, in order to acquire.

Rabbeinu Gershom says that the four categories are four domains:
1. A domain owned by neither buyer nor seller.
2. Seller’s domain.
3. Buyer’s domain.
4. Third party’s domain.

See Tosfos for the objection to Rabbeinu Gershom’s categorization.

Whose Utensils, Whose Domain?

The Gemora attempts to resolve whether a buyer’s utensils acquire merchandise in a seller’s domain, but does not definitively prove one side.

The Rosh (15) rules that this remains an unresolved question. Therefore, we default to the original ownership of the merchandise, both in a case of a buyer’s utensils in the seller’s domain, and a seller’s utensils in the buyer’s domain.

The Rif, however, had a text of the Gemora in which Rav Sheishes replied to Rav Huna that the buyer does not acquire merchandise placed in his utensils, while in the seller’s domain. As a follow up to this statement, the Gemora’s dialogue proceeded to attempt to find a source for this case in the braisa’s cited. However, even though the proof is unresolved, we remain with the original answer of Rav Sheishes, and therefore definitively rule that a buyer’s utensils do not acquire when in the seller’s domain.

The Bais Yosef (C”M 200) explains that the Rif requires that the buyer own the utensil, and have permission for it to be in its current domain, in order to acquire merchandise. Therefore, even if the seller’s utensils are in the buyer’s domain, the buyer will not acquire the merchandise.

The Rambam (Mechirah 4:1-2) also rules like the Rif on this question.

The Bais Shmuel (E”H 139: 16) explains that the distinction between the Rif and Rambam, who rule definitively that the buyer does not acquire when his utensils are in the seller’s domain, and the Rosh, who rules so only due to an unresolved question, is in a case of get. If a husband gave his wife a get in a situation where he does mind her presence in his domain (e.g., on a short bed), this is a case of a buyer’s utensils in the seller’s domain. According to the Rif and Rambam, such a transfer is not effective, and the wife is not divorced. However, according to the Rosh, such a transfer is in doubt, and the wife is therefore in an unresolved state. She may not remarry, but if someone marries her, she must be divorced.

See Ktzos Hachoshen (C”M 200:6) for a discussion of buyer’s utensil in a seller’s utensil, in the buyer’s domain.

When the Seller Agrees

Rav Ashi says that if the seller told the buyer, “go acquire,” then he acquires in his utensils, even in the seller’s domain.

The Tur (C”M 200) quotes the Rema who says that the seller must verbally tell the buyer to acquire, in order for the transfer to be effective.

However, the R”i Migash says that the seller may simply give the buyer permission to place his utensils in his domain.

The Bais Yosef (in Bedek Habayis) objects to the formulation of the Tur, and says that the R”i Migash and Rema do not argue, but were each simply providing an instance where the buyer’s utensils can acquire merchandise in the seller’s domain.

The Bach agrees that the Rema and R”i Migash disagree, and rules like the R”i Migash. The Shach (C”M 200:7) rules like the Bach, while the Nesivos (C”M 200:8) rules like the Rema.