Commencing the Loan of an Item

          Our discussion this week takes us to the world of shomrim.  The gemara in Bava Metzia (99) debates the moment during which a "shemira" is launched.  From this moment onward, neither side may renege on its commitment.  I stress 'neither side' because in all but one case of shomer the benefits are mutual.  In the case of a 'shomer sakhar', actual payment is received by the watchman as compensation for his services.  The sokher receives the rights to use the pikadon, as does the sho'el.  The only shomer who doesn't receive physical benefit is the shomer chinam who watches the item for free (the gemara in several locations does mention that he receives an abstract benefit - his reputation is improved since it has been confirmed that he is a man who can be trusted).  Of course, the benefit to the mafkid is clear; his item is being watched and uninsured against damages.  The gemara raises several opinions as to the point after which neither party may withdraw from the deal.  The options include: from the moment the item is transferred into the house of the shomer (meshikha), or even from the moment the shomer authorizes shipment of the item from the house of the mafkid (even though the item has not yet arrived).  Either of these options seems logical because each focuses upon the transfer of the item from its original location.  Such a moment would be appropriate to signal the start of this arrangement.  The gemara, however, cites the opinion of Rav Huna that the arrangement begins (at least in the case of the sokher and sho'el) from the moment they begin to use the item (baka bo kana'o).  This act - starting to utilize the borrowed/rented item - apparently has no halakhic precedent.  This article will explore the possible meaning of such a moment.

          The Rishon who dealt with this issue at greatest length in the Ritva.  He comments both in Bava Metzia as well as in Kiddushin (47b).  It is highly advisable, if possible, to read the text of the Ritva which will form the frame of this article.

          The Ritva (Kiddushin) begins his assay with a classical two-pronged question.  Whenever a non-conventional 'mechanism' is employed two questions emerge:  Why can't the conventional mechanism trigger the halakhic event?  What effectiveness does this new mechanism maintain?  These integrated questions should, in most instances, be asked together.  Understandably, the answer to one will help solve the other.

          The Ritva primarily addresses the former question.  Why according to Rav Huna will the conventional kinyan of meshikha not operate to inaugurate the deal of a sho'el or sokher?  After all, the Ritva questions, (in what is possibly a rhetoric question) "Aren't renting and borrowing merely miniature purchases?"  Aren't a sho'el or a sokher merely acquiring a temporary, partial kinyan in the item they are using?  Indeed, the foundation for this premise is a gemara in Bava Metzia (56b) which states that sekhirut (and presumably she'ila which is more intense) are purchases for a day (i.e. they are temporary).  If these are miniature purchases, they should be initialized through meshikha which itself launches standard purchases or receipts of matanot!

          The Ritva's response to this question is two-dimensional.  In each stage of his argument the Ritva attempts to verify that a sho'el or sokher receives absolutely no kinyan in the item in question.  Initially, the Ritva suggests that this 'lack of kinyan' is not specific or characteristic of sho'el.  Indeed, even if one were to outright PURCHASE the services of an item (known universally in halakha as 'PEIROT' the dividends of an item - namely its usage) he would in no way be acquiring any part or facet of the actual item.  Instead, he merely acquires an abstract right to benefit from the item.  We do not recognize this right as a concrete kinyan in the keli itself.  Hence, the Ritva argues, if no stake of the keli is being acquired, meshikha loses its validity, since it can only work when something physical (or a stake in something physical) is being acquired.

          Though, logically, this answer seems a neat fit, the Ritva does raise a problem - a parallel case in which acquisition of peirot does constitute acquisition of part of the item itself - the 'guf'.  Such a case involves acquiring the fruits of a tree.  When one purchases these fruits he is considered as having acquired a qualitative dimension of the actual tree (and possibly land as well (see Bava Batra 37)).  Just as ownership can be divided quantitatively (within a partnership), so can it be divided qualitatively - one acquires the peirot (in this case literally the fruit) while another retains possession over the actual trees.  In such a case acquisition of the peirot can be finalized by performing  a physical ma'ase kinyan (in the case of a tree chazaka) on the actual tree.  One can access the fruits through the tree.  Why then, questions the Ritva, can one not achieve possession of the services of the keli by performing meshikha upon the actual keli?

          The Ritva replies by distinguishing between fruits of a tree and services of a keli.  Indeed, since the fruits grow directly from a tree, they are considered an integrated 'facet' or aspect of the tree.  Acquiring the fruits entails possessing a stake in the actual tree.  Therefore a physical kinyan is successful.  Such is not the case when it comes to services of a keli which bear only casual, indirect relationship with the actual item.  They certainly don't grow out of the keli.  Hence, acquiring these services doesn't constitute acquiring a stake of the actual keli and the physical kinyan of meshikha is useless (See Afterword for a third case which lies somewhere in between the fruits of a tree and the services of a keli.)

 

SUMMARY:

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          Initially, the Ritva carves a difference between fruits of a tree and services of a keli.  While the former 'inhere' within the root, the latter are only abstractly related.  While a physical kinyan is effective on the former it is useless in the case of the latter.

          In his initial comments, the Ritva viewed the lack of anchored kinyan, not as particular to sho'el or sokher but as characteristic of anyone who seeks to acquire the services of a keli.  In the second half of his comments the Ritva proceeds to discriminate between a sho'el/sokher and the actual lokeach of services.  Even if we were to admit that one can, in theory, acquire a stake in the keli by purchasing its services, the sho'el/ sokher cannot not acquire this kinyan.  Their ba'alut in the item is forever cramped by the fact that they are responsible to reimburse the owner for losses - and in the case of a sho'el even losses which were not due to his negligence.  How can we consider him even a partial owner is he must reimburse the owner for losses?  Even if meshikha were effective for one who sought to actually purchase the services, the sho'el who receives these services as part of an overall package which obligates him to pay losses, cannot be considered a partial ba'al (See Afterword for the Ritva's ultimate hesitation in the case of a sokher.).

          Indeed, the Ritva's statements prove central to our understanding of a sho'el.  He strips the sho'el of any kinyan, even partial, within the pikadon.  In contrary to the Ritva's opinion, the Rambam in Hilkhot She'ila u-pikadon (1:5) makes it exceedingly clear that both a sho'el and a sokher acquire partial ownership of the item in question.  Rambam does not address the inhibiting factor of the sho'el's payment obligation.  One could certainly differ with the Ritva as to whether these obligations actually interfere with ba'alut.  Ostensibly, they could merely be the product of a separate agreement struck with the mafkid/mash'il to encourage him to loan this item to the sho'el in the first place.

          Even more intriguing is the option of inverting the Ritva's theory.  According to the Ritva the obligations of the sho'el are not consonant with the sho'el's ba'alut; in fact, they handicap it.  Quite possibly, we might conclude that the very source of the sho'el's unprecedented degree of obligations is SPECIFICALLY his status as partial owner.  Why, indeed, should he cover all losses regardless of his level of guilt?  Only an owner suffers losses independent of his guilt.  Might we view the sho'el's limitless obligations as stemming directly from his role as partial owner?  Interestingly enough, such an option is implied by the Shita lo noda le-mi (a commentary on kiddushin whose author is anonymous) is his comments to the gemara in Kiddushin.  Such a distinction is obviously basic to the understanding of a sho'el.  Why are his payments so universal and unrelated to his negligence?  Are these obligations the product of some independent agreement meant to sway to the ba'al to loan him the item?  Or does his use of the item render him a temporary and partial owner who must suffer or absorb losses as an owner does?

 

SUMMARY:

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          In the second section to his comments on kiddushin the Ritva attributed the absence of kinyan to the unique situation of the sho'el.  His extraordinary level of obligation impedes his ability to become owner - even partially.  We might argue with the Ritva in two ways.  We might view obligations as unrelated to ba'alut.  One can achieve partial ownership DESPITE obligating himself to pay.  Alternatively, we might view these obligations as offshoots of his status as partial owner.

          Ultimately, the Ritva addresses the second part of his question.  Having established that meshikha is inoperative, he questions the meaning of this new kinyan - the start of work.  In theory, one might view this act as the precise remedy to the aforementioned problems.  If a sho'el does not acquire an integral stake in the actual item, meshikha is rendered useless because it must address a physical entity.  Starting to work with the item might be a natural manner in which to acquire purely abstract services which bear no relation to the item itself.  Such a stance is advanced by the Machaneh Efrayim and the Ketzot.  The Ritva, however, does not explain the start of work in this manner.  This new kinyan is merely a takanat Chachamim, superimposed to regulate loans and rentals in a fair manner.  Fundamentally, the point of no return does not exist; no action establishes a stage after which neither party can renege.  Such a condition however is 'unstable' since either party will forever remain uncertain fearing that his counterpart will withdraw.  Such an environment is not conducive to productivity and agreements.  To allow a more certain and safe 'financial environment' the Chachamim instituted a takana; after the sho'el starts to use the loaned item, neither party can renege.  We must view this halakha as an extraneous takanat Chachamim, superimposed to preserve financial security, rather than a fundamental halakha.

 

METHODOLOGICAL POINTS:

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1.  As I mentioned in the article two questions generally accompany one another: Why doesn't a standard 'mechanism' operate, and how does this new mechanism operate.

 

AFTERWORD:

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1.  The Ritva cites a middle case which is not like the fruits of a tree or the services of a keli.  The gemara implies that one can transfer the right to live in a house (by executing a ma'ase kinyan on the house) just as one transfers the fruits of a tree (by executing a ma'ase kinyan in the tree).  Given the Ritva's formula (that fruits of a tree are unique because they grow directly from the tree) one might not expect this to be effective.  See the Ritva's answer.

2.  At a certain stage in his comments to Bava Metzia, the Ritva considers distinguishing between sho'el and sokher.  The sho'el, indeed, might have his ba'alut impeded by his extraordinary level of obligation.  By contrast, the sokher, who has a much more moderate degree of culpability, might be considered a partial owner (as the gemara Bava Metzia (56b) suggests).

3.  The question as to the source of the sho'el's obligations has several halakhic manifestations.  The first is the moment in which the obligation emerges and how we evaluate the damages.  What occurs if the item's price changes between the time the item was borrowed and the time it was damaged.  See the Ritva, in Bava Metzia (43a) who stresses that we evaluate based upon the moment of damages.  He underlines the fact that a sho'el has no stake in the actual item.  Another related issue is whether the sho'el can return the damaged item and deduct its worth from the money he owes (shomin).  Tosafot in Bava Kama (11a) state quite clearly that a sho'el is considered a partial owner and hence may not return the broken keli since it is already his.

4.  The Ritva in Bava Metzia invalidates meshikha for acquiring the services of a keli for somewhat different reasons.  Since meshikha is a takanah de-rabanan, it was not established in cases in which the actual physical item isn't being transferred.  What is described in kiddushin in fundamental terms is attributed in Bava Metzia to the nature of the takanat Chachamim.

5.  Despite his limitation of the sho'el's kinyan, the Ritva has not entirely excluded him from ownership.  The sho'el is merely excluded from any degree of ba'alut in the physical keli.  One might legitimately contend that he achieves ownership of the services themselves - unrelated to the actual keli.  See the Ritva in Kiddushin (13a) that in some instances one can be mekadesh a woman with a borrowed ring.  Presumably, the sho'el, who owns nothing of the actual ring, is being mekadesh her with the services of the ring which he borrowed and now owns.

6.  It is important to remember that the Ritva's comments are meant to explain the rationale of Rav Huna.  Conceivably, other opinions in the gemara are free to reject all, or some of Rav Huna's assumptions about sho'el, the relationship between services of a keli and the keli itself, and the nature of kinyan meshikha.

 

 

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