Kiddushin, Daf Kaf Vav, Part 4

 

ובחזקה: מנלן אמר חזקיה אמר קרא (ירמיהו מ, י) ושבו בעריכם אשר תפשתם במה תפשתם בישיבה דבי ר’ ישמעאל תנא (דברים יא, לא) וירשתם אותה וישבתם בה במה ירשתם בישיבה:

 

And by hazakah. From where do we know this? Hizkiyah said: The verse says, And dwell in the cities that you have seized (Jeremiah 40:10): How did you seize them? By dwelling therein.

The School of R. Ishmael taught: And you shall possess it, and dwell therein (Deuteronomy 11:31): How did you possess it? By dwelling therein.

 

The Talmud cites two sources which note that land is acquired by dwelling on it. These verses refer to land seized in war, and thus the land is considered unowned. Israelites take possession of the land (meaning individual possession) by living there.

I want to emphasize that acquisition by hazakah does not mean I can take your land just by squatting on it. Elsewhere we learn that to possess land by hazakah one must also claim that he bought it but lost the documentation. Hazakah creates a presumption of ownership. If you live on land for three years and I do not protest, I cannot come later and say that the land is mine. And if I sell you land, and you go and dwell on it, its yours even if you have not yet paid for it. But no one thinks that you can buy land by simply dwelling on it.

 

ושאין להם אחריות אין נקנין אלא במשיכה: מנלן דכתיב (ויקרא כה, יד) וכי תמכרו ממכר לעמיתך או קנה מיד עמיתך דבר הנקנה מיד ליד

 

[Property] which does not have security is acquired only by being drawn [to the purchaser] (meshikhah).

From where do we know this? Because it is written, And if you sell an article to your neighbor, or buy from your neighbor s hand (Leviticus 25:14), an article is acquired [by passing] from hand to hand.

 

The Talmud now provides a source for the rule that objects are only acquired by physical transfer from seller to buyer.

ולר’ יוחנן דאמר דבר תורה מעות קונות מאי איכא למימר תנא תקנתא דרבנן קתני:

 

But according to R. Yohanan, who said, By Biblical law, money acquires, what can be said? The Tanna teaches a rabbinical enactment.

 

R. Yohanan holds that according to the Torah, even money can acquire objects. He interprets the mishnah as a rabbinic enactment, which offers protection to the purchaser. He will not officially acquire title and responsibility until the object comes into his hand.