SHIUR #23: Davar She-lo Ba La-olam

             Based on shiurim by Rav Doniel Schreiber

Introduction

The mishna in Kiddushin (62a), without formally declaring  so, discusses two central principles in halakha: Devarim she- ba-lev einam devarim (unspecified stipulations are not valid)  and davar she-lo ba la-olam (relating to items not yet in  existence). The juxtaposition of these two ideas in the mishna  is odd, but even more unusual is that our gemara completely  ignores the concept of devarim she-ba-lev, and focuses its  entire discussion on davar she-lo ba la-olam.

Normally, in the halakhic system, we deal with things  which presently exist in this world. We change the status of  fruit when we separate teruma (priestly offering), establish a  relationship with a woman through kiddushin, or transfer  ownership by selling chattel and real estate.  What about the  possibility of effecting a change in status, relationship, or  ownership, on something which has not yet been created - davar  she-lo ba la-olam? This could include: separating teruma from  cut produce upon produce that is still attached to the ground  (which is not yet subject to teruma laws), a gentile  betrothing a woman so that it will take effect after his  conversion, and selling fruit which has not yet grown, or a  field which I do not yet own.

While our mishna apparently rules "ein adam makneh davar  she-lo ba la-olam," i.e. one cannot sell that which is not  actually in existence, the gemara cites a number of Tannaim  who disagree and assert that "adam makneh davar she-lo ba la- olam," i.e. one can sell that which is not yet in existence.  This shiur will discuss the rationale of the ruling - "ein  adam makneh davar she-lo ba la-olam."

Mechusar Ma'aseh

What is the reason behind the inability to effect a  kinyan on something that is not yet in existence? R. Yochanan,  in our gemara, limits this ruling to cases of "eino be-yado"  (literally, not in his hand). However, in cases of "be-yado"  (lit., in his hand), one can effect a kinyan, since "kol  she'be-yado lav ke-mechusar ma'aseh dami," (lit., whatever is  in his hand is not considered as lacking action). Evidently,  the problem with davar she-lo ba la-olam is that is considered  mechusar ma'aseh - lacking an action.

What exactly does "mechusar ma'aseh" mean? The basic  elements required to effect a kinyan (acquisition) are a  ma'aseh kinyan, da'at koneh u-makneh, and a chalut. The term  "ma'aseh kinyan" refers to a physical act which demonstrates  the transfer of ownership, change in status, or relationship.  Some examples include meshikha (pulling the object) and  hagba'ah (lifting the item). "Da'at koneh u-makneh" refers to  the wholehearted decision of both the buyer and seller to  effect the transaction. Finally, "chalut," simply put, refers  to the formal status conferred upon the completion of the  transaction. How, then, does "mechusar ma'aseh" eliminate one  or more of these critical components of kinyan?

On a simple level, one might explain that mechusar  ma'aseh refers to the lack of a ma'aseh kinyan, the rationale  being that one cannot physically apply a ma'aseh kinyan to  something not actually in front of you. Ma'aseh kinyanim  address a physical entity, and in the case of davar she-lo ba  la-olam the entity is not yet there. However, this might not  be the problem with davar she-lo ba la-olam because halakha  already has a way to deal with such cases. Kinyan Chalipin or  agav (barter or inclusion) are often used to circumvent the  need for a ma'aseh kinyan on objects which are difficult to  acquire by a physical act of kinyan (see Tosafot Shantz in  Shita Mekubezet to Bava Metzia 33b, and Chiddushim Ha- meyuchasin La-Ritva ad loc.). What then does mechusar ma'aseh  mean?

There are two possible approaches one can take in  explaining "lack of action." The most appealing, textually, is  that mechusar ma'aseh refers to control, i.e. one is not in  absolute control of the situation (see the gemara above  regarding 'in/not in his hand'). This might mean one of two  things: 1) It is impossible to sustain the basic component of  gemirut da'at (commitment) when one is not the master of a  situation; or 2) Perhaps even if one has commitment, one  cannot be considered a ba'al, an owner or possessor of title,  over something not in one's control. Thus, although all the  basic elements of kinyan are present, there is effectively no  clear owner.

A second approach would be that mechusar ma'aseh means  that a davar she-lo ba la-olam is "out of touch," so to speak.  There is no object that the kinyan can be chal upon, or apply  to. Here, the emphasis is not on the mechanism of kinyan, nor  on the lack of an individual to whom we can relate the kinyan.  The problem of lo ba la-olam strikes to the core of kinyanim.  The very stuff of kinyanim is missing - the chalut itself.

1. Semikhut Da'at

Each of these problems in davar she-lo ba la'olam - lack  of da'at, ba'alut, or chalut - is highlighted in different  gemarot and Rishonim. For example, the gemara in Bava Metzia  16a explicitly refers to the lack of da'at as the cause for  the failure of a kinyan be-davar she-lo ba la-olam. According  to the gemara, a sale of stolen land is effective on the  assumption that the robber will eventually purchase the land  from the original owner. This seems to assume that one may  sell a davar she-lo ba la-olam. On the other hand, the gemara  also rules that a sale of fish that have not yet been caught  is invalid, in accordance with the opinion one cannot sell a  davar she-lo ba la-olam. In distinguishing between the two  cases of selling davar she-lo ba la-olam the gemara answers:  "Hakha samkha da'atei, ve-hakha lo samkha da'atei," in the  case of the stolen field there was complete commitment,  whereas in the case of the uncaught fish there was no semikhut  da'at.

The reason why semikhut da'at existed in the case of the  stolen field was only due to external reasons - the seller  (i.e. the robber) would surely acquire the field to sell so  that the purchaser might not call him a robber. In the event,  however, that these external considerations did not exist, as  in the case of the uncaught fish, then kinyan be-davar she-lo  ba la-olam would not work as there is no semikhut da'at.  Indeed, Nemukei Yosef (Bava Metzia 37b in pages of Rif)  asserts precisely this, that "since the fruit has not yet come  into the world, the kinyan does not work, de-lo samkha  da'atei."

This idea is further accented by the Tashbetz (#398). He  questions what the halakha would be in a situation where it  has become accepted in the market to sell devarim she-lo ba  la-olam. (This is relevant nowadays, as it is common practice  to sell futures.) The Tashbetz asserts that in such a scenario  the kinyan is valid. One possible explanation of this pesak is  that without the general acceptance of such practices, there  is no semikhut da'at, commitment, when selling items which  have not yet come into existence. However, once the norm is to  buy and sell devarim she-lo ba la-olam, it is reasonable to  assume different criteria in determining a commitment.

Similarly, Tur, in his commentary on the Torah, asks how  Esav could have sold his birthright which was a lo ba la-olam  as their father, Yitzchak, was still alive. He answers that  since Esav swore to uphold the sale, selling a davar she-lo ba  la-olam was no longer a problem. Rema (C.M. 209) rules in  accordance with this opinion, that taking an oath to fortify  the sale of a davar she-lo ba la-olam legalizes the sale. The  logical explanation for such a position is that an oath gives  us the conviction that the transaction will occur, and thus  both parties are willing to commit and have semikhut da'at.

2. Ba'alut

An alternative flaw in kinyan be-davar she-lo ba la-olam  is the lack of ba'alut, control or ownership. This is  reflected in the gemara in Nedarim 85b which states:

"It is proper that one may prohibit his neighbor's fruit to  himself, since he can forbid his own fruit to  his neighbor:  but shall he forbid the non-existent to his neighbor, seeing  that he cannot forbid his neighbor's fruit to his neighbor?!"

In this gemara, there is a clear correlation between lack  of ba'alut and davar she-lo ba la-olam. Indeed, the Ran  (ibid.) emphasizes this point when he writes: "de-perot  chavero (his friends fruit are like) ke-davar she-lo ba la- olam dami." (See also Tosafot, ibid.)

3. Chalut - Kalta Kinyano

Finally, it is possible that davar she-lo ba la-olam  causes problems in establishing a chalut. One may view this in  one of two ways. Either inherently it is lo nitfas be-kinyan,  i.e. a chalut kinyan is not applicable to it. Accordingly,  this would exclude all possibility of kinyan. Alternatively,  it might mean that only a particular form of kinyan, such as  one involving a ma'aseh, cannot establish a chalut. However, a  kinyan involving amira (a statement) alone would be effective.

Many Achronim seem to embrace this latter approach in  understanding the problem of chalut be-davar she-lo ba la- olam. For instance, the Noda BiYehuda (Mahadura tinyana, Even  HaEzer 54:12), the Ketzot (332:6), and R. Shimon Shkop  (Nedarim, #22), all point to the inability of the ma'aseh  kinyan to relate to a davar she-lo ba la-olam as the cause for  the failure in a chalut. This is rooted in a halakhic reality,  peculiar to ma'aseh kinyan, called kalta kinyano.

One of the basic prerequisites of a ma'aseh kinyan is  that a residue of the ma'aseh must still exist at the time of  the chalut kinyan. This is necessary so that the ma'aseh can  apply to the object of the kinyan. If there is no vestige of  the ma'aseh at the time of chalut, however, the kinyan is said  to have terminated or expired, - "kalta kinyano." (See Choshen  Mishpat 197:7, and Shakh ad loc.). Similarly, when the object  of the kinyan is a davar she-lo ba la-olam, it is impossible  for the ma'aseh kinyan to apply to an object that does not  exist, and the kinyan expires.  Thus, the chalut of a ma'aseh  kinyan on a davar she-lo ba la-olam fails due to the same  principle which invalidates a case of kalta kinyano.

These Achronim claim, therefore, that a kinyan can be  effective on a davar she-lo ba la-olam so long as it does not  involve a ma'aseh. If there is no ma'aseh, there is no din of  kalta kinyano. For instance, Rashba (cited in Ran, Nedarim  29a) posits that one can be makdish (dedicate to the Temple)  objects le-achar sheloshim yom, i.e. the kedusha should be  chal thirty days after the amira. He claims that this works,  and does not encounter the problem of kalta kinyano, because  hekdesh only involves an amira. Similarly, sekhirut po'alim  (hiring workers) and hefker (making ownerless), whose basic  components are amira and da'at, and not ma'aseh, do not  possess the limitation of kalta kinyano, and thus would effect  a chalut kinyan even on a davar she-lo ba la-olam.

There is some evidence in the Rishonim which might  support such conclusions. Rivash, for example, makes a  striking comment. He asserts that prior to matan Torah one  could be makneh a davar she-lo ba la-olam. This appears  strange, for in what way was davar she-lo ba la-olam any  better before matan Torah. One explanation might be that prior  to matan Torah there was no concept of a ma'aseh kinyan -  ma'aseh kinyan was introduced by the Torah - and kinyanim were  accomplished through gemirut da'at alone. Thus, since there  was no ma'aseh kinyan prior to matan Torah, there was  similarly no limitation of kalta kinyano.

Similarly, Yad Rama (Bava Batra 149a) rules that kinyan  odita (kinyan through admittance, see Bava Batra, ad loc) - a  kinyan through amira - works even for a davar she-lo ba la- olam.

Understanding Our Gemara

Our gemara (Kiddushin 62a-b) discusses various cases  which are considered "eino be-yado," such as a gentile  attempting a kiddushin now to be chal at the conclusion of  gerut, or kiddushin for a shifcha Kena'anit (gentile  maidservant) to be chal only upon being freed, or kiddushin  for one's own wife to be chal subsequent to the husband's  divorcing her. One can consider each of the problems in davar  she-lo ba la-olam - da'at, ba'alut, or chalut - for these  cases.

In all these instances it is possible that there is a  lack of semikhut da'at. After all, in the case of the gentile,  who is to say that he will find three judges to effect a  conversion, or, in the case of the shifcha, how can one relate  to such a far gone reality - the transformation from being a  gentile to a Jew, or, in the case of kiddushin after divorce,  who is to say that his wife will want to marry him again?

Similarly, the lack of ba'alut could hamper the kinyan in  these cases. In the case of the gentile, he is not in control  of his own conversion, and in the case of marrying one's own  wife after the divorce, he is not in control of her future  desire to marry him again. In the instance of shifcha, one  might argue that although the master can free his shifcha at  will, the new person resulting in this transformation is so  fundamentally different that the master is not considered to  have ba'alut in effecting the kiddushin on the future free  person.

However, it is difficult to apply the failure of chalut  to all these cases. For instance, in the case of gerut or  kiddushin after divorce, the gemara cites the inability to  control the situation as the reason for the kinyan's failure.  This does not seem to work well with a failure in the chalut.  Yet, the gemara's reasoning with regard to shifcha, that she  has undergone a fundamental change, for the failure in  kiddushin, might be interpreted as a failure in chalut. One  might argue that although physically the woman is here, she is  not "in this world" halakhically, and thus the ma'aseh  kiddushin cannot relate to her. The gap, between being a free  Jewess and being a shifcha, is so great, that she - the free  "Jewess" - is "lo ba la-olam."

Therefore, one may consider distinguishing between cases  of gerut, kiddushin after divorce, and shifcha.  Davar she-lo  ba la-olam may fail for different reasons in each case.  For  instance, it is possible that the problem with gerut is lack  of da'at, the failure in kiddushin after divorce is lack of  ba'alut, and the inability to marry a shifcha due to a bereft  chalut.

Conclusion

To conclude, we have discussed various rationales for the  failure of a kinyan on a davar she-lo ba la-olam. A kinyan on  something not "in this world" could fail due to either a lack  of commitment by either of the parties, or because of a  deficiency in ba'alut, i.e. connection with the subject or  item, or due to a failure in the chalut. Nonetheless, there is  a minority opinion, as cited above, that subscribes to the  idea that one can sell something not yet in existence. How  this opinion may be justified is the subject of the next  shiur.

 Sources for Next Week's Shiur -----------------------------

Kiddushin 62a - the mishna and gemara until the first mishna  on 63a; Tosafot and Rashba 63a s.v. Kegon De-katav; Ritva 63a  s.v. Ve-hai De-ka'amar; Rashash 63a s.v. Le-hakhi Nakat.

1.  While learning the sugya, pay attention to the various  cases of "lo ba la-olam" - would it be logically tenable to  validate the kinyan in  some of the cases, but not all?  Base  your answer on what you know about the problem of "lo ba la- olam."

2.  In Tosafot - pay attention to the shita of Ri (it appears  in two parts: "le-khakh omer Ri" until "ve-haRam peiresh," and  further on "u-mihu kasheh" at least until "ve-tzarikh le- dakdek").  What is the function of "me-akhshav"?  Does this  apply only to the case of davar she-lo ba la-olam, or is it  halakhically relevant even according to those who disagree  with R. Meir?

3.  The Rashba quotes Ri, but his report contains an added  element: an additional function of me-akhshav, which does not  appear in Tosafot.  What is it? (Rashba refers to the gemara  in Yevamot 93a line 6 "De-amar Rav Nachman" until end of line  14.)