Translation:Shulchan Aruch/Choshen Mishpat/198

Paragraph 1- Biblically, money is effective to make a kinyan. The Rabbis instituted, however, that movable items can only be acquired via lifting or pulling something that is not generally lifted. Once the recipient has pulled or lifted he will acquire, even if he has not given the money. How so? If one was gathering wood or flax or something similar, and he created a large load that is impossible to be lifted, it cannot be acquired via pulling because it is possible to untie the load and lift each piece of wood. If it was a load of nuts, berries or almonds or something similar that one cannot lift, however, it can be acquired via pulling. There are those who disagree and hold that even wood can be acquired with pulling because it would be a burden to untie and lift. See later 200:7 for the laws of pulling and lifting.

Paragraph 2- There are those who say that for lifting the item must be lifted three tefachim. There are others who say only one tefach is required.

Paragraph 3- When they refer to pulling, the entire item must be pulled and moved from its current location.

Paragraph 4- If one lifts an item that is not generally lifted, he would acquire it.

Paragraph 5- Why did the Rabbis institute that money should not acquire? They made a decree in the event the buyer gives money for an item and before he can take the item an accident occurred, such as where a fire occurred and the item burnt or thieves came and took it. If the item was considered the buyer’s, the seller would hesitate and not save it. Therefore, the Rabbis put the item in the seller’s possession, so that he would make the effort to save it. Therefore, if the home where the item was sold belonged to the buyer and was rented out to the seller, the Rabbis kept the biblical-law because the item is accessible to the buyer and he would be able to save it. Similarly, if one rented the location where those movable items that were being sold were located using one of the methods of acquiring a rental that were discussed above in 195:9, he would acquire the movable items that were located in it, and neither party would be able to retract, so long as the as the courtyard was guarded with the knowledge of the renter or the renter was standing next to the location. There are those who say that if the movable items were in a place where there is no concern of a fire, the items would be acquired with money. Similarly, if they made an explicit condition that the money should acquire, the money would acquire.

Paragraph 6- There are those who say that the rental of a movable item would be acquired with money because there is no concern that the owner would say “your wheat was burnt in the upper story” given that the actual item belongs to him so he will burden himself to save the item.

Paragraph 7- Because a boat cannot be lifted and it would be very burdensome to pull it and it can only be pulled by many people, they did not require a pulling. Rather, it can be acquired via handing over. The same applies to anything similar.

Paragraph 8- The handing over that was mentioned does not have be given directly from the hand of the seller to the hand of the buyer. Rather, once the buyer has grasped the item in the presence of the seller or at his instruction, it is as if it was handed over.

Paragraph 9- Handing over only acquires in a public domain or a courtyard that does not belong to both of them where the item was brought in without permission of the owner of the courtyard. Pulling only acquires in an alley or a courtyard belonging to both of them. Lifting is effective everywhere. If the seller tells the buyer to acquire with handing over or pulling in a place where such a kinyan is not effective, the condition would not help and he would not acquire.

Paragraph 10- Thus, if the boat was in the public domain or a courtyard that does not belong to both of them, and the seller is insistent and says he must pull to acquire, the buyer must pull the entire amount and remove it from this domain where pulling does not acquire to a domain where pulling would acquire.

Paragraph 11- If the item was in an alley or courtyard belonging to both of them, it can only be acquired with pulling and not with handing over.

Paragraph 12- If the item was in a public domain and the seller did not say anything, and the buyer went ahead and pulled, he would not acquire until he pulls properly from the public domain to an alley. Although handing over would acquire in a public domain and does not require a direct handing over from hand to hand, nevertheless because the buyer already began to pull, he has shown his intention that he does not want to acquire via this possession that he is taking, but only with pulling.

Paragraph 13- There are those who say that a boat can only be acquired via pulling in the typical manner in which it is pulled, such as where the boat is in the water or in a pool of water that is in an alley or a courtyard that does not belong to both of them. If the boat was on dry land, however, the buyer can only acquire with lifting.

Paragraph 14- If an item that can be acquired with pulling that was in the public domain or a courtyard that does not belong to both of them and the buyer pulled the item into his domain or an alley, once a portion of the item was pulled from the public domain or courtyard that did not belong to both of them, he would acquire the item given that he has pulled the entire amount and moved it from its location.

Paragraph 15- If one gives the money or portion of the money for movable items, and the buyer retracts, and the seller says come and take your money, the money has the status of a deposit with the seller. If the money were stolen or misplaced, the seller would not be responsible. If the seller retracted and the buyer says come and take your items, the money would be considered in the seller’s possession and he would be responsible, even for highly unavoidable accidents, until the seller accepts the “mi shepara” curse and then tells the buyer to come and take what is his. In such a case, if this exact money that buyer gave was still in existence, the seller would be exempt. If he already removed the money and designated other money in its place and accepted “mi shepara”, however, there are those who say it converts to a loan and the seller would even be liable for an unavoidable accident until the money actually enters the buyer’s possession. There are those who say that even if the seller took the money, once he has accepted “mi shepara” and given the money, he would be exempt, even if the buyer did not want to accept it.