Monday, October 12, 2009

Baba Basra 53b - Kinyan by Spreading out Mats

The gemara says that one can make a kinyan on a parcel of property by spreading mats out on the property and continues to prove this point from the fact that one can make a kinyan on an eved by working with the eved. There seem to be (at least) 3 approaches as to why this works:
1. Rashbam explains that although one is not making any improvements in the property which is the more typical type of chazakah, he is enjoying and benefiting from the property by the service that he is receiving from the property. Based on this approach the Rashbam demands that he actually recline on the mats. It would seem that according to the Rashbam, the spreading of the mats is not so significant, but rather the significance is that the property is serving him. This would lead one to assume that the consumption of the fruits would also qualify as a chezkas kinyan, so the rashbam 54a is forced to explain why this is more kinyan-like than consuming the fruits of the property - דהתם קמיתהני גופו מן הקרקע וקמשמא ליה קרקע כעבד לרב. The Rashbam holds that the kinyan is not merely achieved from receiving benefit from the property, rather the property must be serving him directly as a slave would serve a master. Based on this approach the Rashbam explains that the gemara only intends to compare the spreading of mats on the property to the slave lifting the master, because in both cases the thing that is being acquired is "holding" the owner and servicing him in the process.
2. Rabbeinu Yonah understands that and benefit that one receives from the property enables him to make a chazaka. Based on this more open approach, it seems that any service that the slave is doing for a master is comparable to the benefit of using the property for a physical pleasure.
3. Tosafos and the Rosh seem to understand that there must be a clear display of ownership which they refer to as a "chazaka chashuva". This is only achieved by the act of spreading the mats AND using the mats. If one were just to spread out mats or just to use the mats it is not a chazaka. Based on this, the Rosh adds that if one were to set a table on the property and eat from it, it would also be a chazaka.
4. Rambam (zechiya 2:4) seems to group the spreading of mats with the painting pictures, indicating that the chazaka is achieved because it is an improvement of the property. The magid mishneh brings to explanations of the Rambam (the two explanations are separated by the words "פעם אחת", which is clearly an editor mistaking the abbreviation of פירוש אחר). The second explanation of the magid mishna is that the chazaka is somewhat of a standard chazaka that comes from the improvements to the property. The lechem mishna explains that the proof from the braisa by acquiring a slave is that from the fact that the braisa makes the distinction of who does to whom only by lifting up, implies that by all the other things listed such as putting on shoes works even if the master does it for the eved, because it is an improvement being made in the eved. Although this resembles a very standard type of chazaka, the chiddush is that even though it is only temporary and somewhat external, such as laying down mats and putting on shoes, it is still considered an improvement to the actual property and therefore works as a chazaka.

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