Friday, January 29, 2010


Kinyan through Admission

The Gemora in Bava Metzia (46a) struggles to figure out a way how Reuven can transfer his money that he has at home to Shimon, who will then use that money to redeem the ma’aser sheini of Reuven and avoid the additional fifth surcharge.

The Gemora suggests that if Reuven would have land to transfer to Shimon, he could transfer the money “agav” the property. Although Tosfos in Bava Kamma (12a) writes that kinyan agav is only Rabbinical, apparently Tosfos understands that even a Rabbinical kinyan would be sufficient to establish Shimon as an owner of the money to redeem the ma’aser sheini and biblically avoid the additional fifth surcharge.

Tosfos raises a question: Even without a kinyan agav or kinyan chalifin, can’t Reuven very directly transfer to Shimon the money by “admitting” that it actually belongs to Shimon? This is what Rav Ikka asked Rava in our Gemora.

In this question, Tosfos evidently assumes that an admission doesn’t merely allow Beis Din to act as if witnesses testified, but it actually transforms the ownership of the item to belong to Shimon and would be considered Shimon’s money for ma’aser sheini redemption purposes.

The Ketzos HaChoshen (40) answers Tosfos question by establishing a clause in this type of kinyan that it must be done in the presence of witnesses. Therefore, we can easily state that we are dealing with a case where there are no witnesses available to allow the kinyan hoda’ah (admission) to go into effect.

The Ketzos (194:4) has an elaborate discussion where he explains that this type of admitting would serve as a kinyan even for the purpose of transferring chametz that is another place to belong to a gentile. We see from the fact that it works for ma’aser sheini that it not only works for monetary purposes, but even for prohibition purposes, therefore it should work for chametz as well.

However, Tosfos in Bava Kamma (104b) implies that it would not work on a Biblical level and wouldn’t work for ma’aser sheini purposes. Nevertheless, the Ketzos argues that it should still work for chametz since one has nullified the chametz and the requirement to rid himself of the chametz is only Rabbinical. But in truth, the Ketzos points out that even if kinyan hoda’ah is only Rabbinic in origin, it shouldn’t be any worse than kinyan agav which works for ma’aser sheini.

Reb Avi Lebowitz suggests that Tosfos in Bava Kamma doesn’t necessarily contradict the other Tosfos because Tosfos in Bava Kamma is speaking about a case where he is admitting that he owns property by which he will transfer the money through a kinyan agav - to which Tosfos says that it doesn’t work on a Biblical level. But this Tosfos speaks of directly transferring the money through an admission, which would work on a Biblical level.

The rationale for the distinction is that admitting to owning property would require two Rabbinical allowances - one for the kinyan hoda’ah and a second for kinyan agav. A kinyan which is based on a combination of two Rabbinical allowances is weaker and perhaps would not work on a Biblical level.


A Ger Does Not Inherit

The Gemora relates that Issur cohabited with Shmuel’s daughter and only converted once she was pregnant. The child would one day become the great Amora, Rav Mari. Years later, Issur died and his estate was worth a large amount of money. The Gemora deals with how Issur would be able to transfer the money to his son, Rav Mari. The very first of many different ways that the Gemora tried to transfer the money, was via inheritance. But that couldn’t work, since Rav Mari cannot inherit his father.

The Shulchan Aruch (Choshen Mishpat 283:1) rules that although the Torah says that a non-Jew can inherit his father, a convert cannot, since he has the status of a infant that was just born into Klal Yisrael without any Jewish parents. However the Chachamim did allow for him to inherit, for they feared that he would revert to being a non-Jew in order to claim the inheritance.

However in a case where the father is a convert and his child is a non-Jew (i.e. the father converted after the child was born), or even when both the father and son converted, the son does not inherit the father, since the above reason obviously doesn’t apply. Furthermore, even if the father converted before the child was born (but after conception), that son cannot inherit his father, nor can the father inherit him. The reason is that a convert has a newborn status in regard to relation, and only a child that was born and conceived after he converted can be said to be his Jewish son. If, however, the conception was prior to the conversion, then this child cannot be considered his son.