SHIUR #24: Davar Shelo Ba La-olam According to R. Meir

by Rav Elyakim Krumbein

1. Background

R. Meir holds that a kinyan (an act of acquisition) can be done on something which is "lo ba la-olam" (not yet existant). According to this view, a person can conclude a transaction which, under the existing conditions, is halakhically invalid, and the transaction will take effect when conditions permit. Thus, one can betroth a woman who is presently a Gentile or a maidservant. The marriage will become valid upon the woman's conversion or liberation. In the same vein, one can sell a field which he himself has yet to acquire, and upon his acquisition, the field will automatically transfer to the possession of the buyer. This case is brought in Bava Metzia (16b).

The majority view holds, unlike R. Meir, that a kinyan cannot be done on something which is "lo ba la-olam." There are two grounds which have been advanced to explain this position. One is that there is insufficient da'at makneh (intention) present to sustain the transaction, since the parties are not capable of relating to eventual change as a concrete reality. The second is that the ma'aseh kinyan, the act which is the halakhic vehicle of the change, is invalidated by the same considerations which preclude the change from taking effect. For example, not only is a Gentile woman incapable halakhically of becoming the wife of the Jewish betrother, but the very ACT of betrothal is totally meaningless, and can have no effect even if she converts later on. Likewise, the act of selling a field which belongs to someone else is utterly devoid of significance, even on the supposition that the seller will eventually acquire it. (See shiur #23.)

How would R. Meir respond to these two arguments? The first point isn't too problematic. R. Meir may have a more charitable assessment of the common man's ability to deal with abstractions. Also, he may feel that the Chakhamim set too high a standard as to the level of da'at necessary to effect transactions. But how would R. Meir deal with the lack of the objective conditions needed for a valid kinyan? In this shiur we will explore the ways in which R. Meir resolved this issue.

2. Understanding R. Meir (A)

It is self-evident that R. Meir agrees that the kinyan which is lo ba la-olam cannot possibly take effect before the conditions permit. How, then, does he validate kiddushin done with a Gentile woman? Perhaps R. Meir distinguishes between the ma'aseh and the chalut - between the act of kinyan and its taking effect. The former is not constricted by the considerations which govern the latter. However, positing such an explanation for R. Meir is not without difficulty. True, we may be willing to ignore some of the legal requirements, such as the Jewishness of the parties to the kiddushin, on the theory that they apply only to the end result of the kinyan and not to the transaction itself. But it is another thing to attribute significance to the sale of an item which is not owned; common sense justly rebels at such a notion, not only in relation to the chalut, but even with regard to the ma'aseh per se. Matters become even worse when we get away from legal drawbacks, and begin to validate actions taken on objects whose very physical existence is currently in a state of mere potential. As we have seen in our sugya (62b), R. Meir allows even such transactions, such as betrothing a fetus, or separating teruma from produce which has only begun to grow.

These considerations suggest that R. Meir did not arrive at his theory by separating the process from its end result, but rather from quite the opposite direction. On the fundamental level, he would agree that a ma'aseh kinyan may not be done on something which is lo ba la-olam. However, R. Meir did not think that the act of transaction has to be seen as "completed" if the circumstances prevent it from bearing fruit. Act and result are not two distinct stages, but a continuum. Therefore we need not be perturbed by the drawbacks of the present. In effect, the act of kinyan will have been done on a davar she-ba la-olam (existant item), because by the time the process has been completed, all conditions have been met. The endpoint clarifies and establishes the significance of the whole process.

It is conceivable that this principle underlies R. Yochanan's opinion that "dibbur mevatel dibbur" (a later statement can nullify a preceding one) (above 59a), in the case of kiddushin which will take effect, by agreement of the parties, thirty days after the act. Resh Lakish held that once the act of kiddushin was done, even if its effect has been delayed deliberately, it nevertheless has a dynamic "life of its own." It is a process set in motion, over which the parties no longer have control, and therefore the woman cannot withdraw from the marriage. R. Yochanan's opinion may be understood if we assume that the process in fact has no "life of its own," for its meaning is only established once the endpoint has been reached. Until such time, nothing has really happened, and the woman may retract. (See shiur #18.) R. Meir extends this idea further, in order to solve the problem of davar she-lo ba la-olam. He thinks that the moment at which the finish-line is reached can define the entire process that led up to it, and since at that time everything is ba la-olam, the whole kinyan is thereby validated.

We will use the above approach as our working hypothesis for explaining R. Meir. It needs to be tested in the light of a discussion among the Rishonim which appears in our sugya. One innocent-sounding word set off a debate which will ultimately force us to revise our ideas about R. Meir. It is to this issue that we will now turn.

3. "Me-akhshav" as a solution to the problem of delayed kinyan

The sugya (63a) says that those who hold like R. Meir, allow someone to liberate a slave not presently owned, by stipulating "when I buy you, you will be free as of now (me- akhshav)." The Rishonim found this addition of "me-akhshav" puzzling. Obviously, the liberation can have no effect while the slave is still owned by someone else. Moreover, why didn't R. Meir himself mention "me-akhshav" in the case of kiddushin with a Gentile woman? Tosafot, quoting the Ri, maintains that "me-akhshav" has been inserted to solve a specific problem which typically plagues a lo ba la-olam transaction. Whenever there is a time-lapse between the act of kinyan and its taking effect, as in davar she-lo ba la-olam according to R. Meir, or when the parties stipulate as in "le- achar shloshim" (viz. the mishna above 58b), we are faced with the obstacle of "kalta kinyano" - the act of kinyan has already "evaporated," and there is nothing left of it now to effect the chalut. What this means is that quite apart from R. Meir's argument with the Chakhamim, there is a major obstacle posed by the very distancing of the physical activity of kinyan from its effective "halakhic action," even when all the requirements are met, and everything is "ba la-olam." Classically, this problem is neutralized by finding a way to keep the act of kinyan from "disappearing" once completed. (See shiur #23.) When using a shtar, for instance, we can decide that the acquisition will take effect only at some future date, because at that time the shtar will still be in the possession of the buyer. This possession is the direct result of the act of kinyan - the transferring of the shtar, and this enables us to say that the past act still "lingers" in the present. Had the shtar been destroyed in the interim, the kinyan could not take effect. "Me-akhshav," according to Tosafot, is an alternative. When the sides stipulate that the kinyan will be "as of now," all we need is an act of kinyan which is valid momentarily, and then we may delay its effectiveness according to our whim, oblivious to the problem of "kalta kinyano." In the above example, if we want to delay a kinyan shtar, we may do so even if the shtar has been destroyed after the ma'aseh kinyan, provided that the transaction was done "me-akhshav." On the other hand, "me- akhshav" is superfluous in R. Meir's case of kiddushin with a Gentile, because the kinyan was presumably done with kesef, and the gemara already explained (above 59a) that kesef is immune to "kalta kinyano."

It remains to be understood, however, how the formula "as of now" works. "Kalta kinyano" appears to be an objective halakhic obstacle, like lo ba la-olam or 'eino bi-reshuto' (the object is not in his possession), neither of which can be overcome by saying some "magic words." How, then, are we to understand the special power of "me-akhshav?"

In grappling with this problem, we may resort to the Rambam in Hilkhot Geirushin (9:1-5), who presents a contrasting treatment of "le-achar zman" (delayed transactions) and "tnai" (conditional transactions). Although in both the kinyan takes effect well after the action, they are conceptually different. In tnai, the kinyan has been done, but as yet has no effect because the condition has been added. In kinyan le-achar zman, the kinyan - conceptually - has yet to be done. The implication is that a condition, is a foreign element which is tacked on to an existing kinyan, and tampers with its effectiveness. (See shiur #20,21.) A stipulation which delays, on the other hand, is part of the basic definition of the transaction, and we say that nothing has happened until the proper time has arrived. (Recall our above suggestion (2) that this understanding of "le-achar zman" was adopted by R. Yochanan.) A delayed divorce, for example, hasn't "happened" even if the woman has received the get, and it must be in the woman's possession at the appointed time in order to have any significance. In the conditional divorce, says the Rambam, the get is effective even if not possessed by the woman at the moment the condition is met, for the act of divorce has already occurred in the past.

This framework can help us understand how me-akhshav solves the problem of "kalta kinyano" according to Tosafot. It seems that the Ri agrees with the Rambam's basic conception of the delayed transaction, with one exception. There is one case where a delayed kinyan, like the conditioned one, can be said to have "occurred" before it becomes effective: where the parties declare that the deal will later take effect "as of now." By saying this, they are creating a transaction which on the one hand is delayed and not conditional, but at the same time is viewed as an already complete entity. 'Me- akhshav' turns the delayed transaction into one which ACTS LIKE a conditional transaction. The delay is not something which defines when the transaction will take place, but an external mechanism which prevents it, for a fixed time, from taking effect. Since the ma'aseh kinyan is already endowed with independent integrity, we have no need for its "lingering" into the future. We await only one future development: relief from the delaying stipulation. This relief is not a kinyan, and can come even if "kalta kinyano."

4. Ramifications of "me-akhshav" for R. Meir

However, if we are understanding Tosafot correctly, we are regrettably faced now with a logical contradiction. As we have said, there are two cases of the delayed transaction. One is the case of "le-achar zman" - where the delay is voluntarily agreed upon. The second is davar she-lo ba la- olam, according to R. Meir - here, the delay is inherent and inescapable. Tosafot say that "me-akhshav" gives us a full- blown kinyan which is hampered slightly by an external stipulation. He says this in relation to "le-achar zman," but he also says this about davar she-lo ba la-olam. But how can betrothing a fetus be viewed as a full-blown kinyan? Recall that in order to understand R. Meir, we had no alternative but to see that act of kinyan in continuum with its effect, thus enabling the endpoint of the process to define it as a davar she-ba la-olam. Tosafot, however, now insists that at least in the case of me-akhshav, the act itself has an integrity divorced from the future result. Clearly, the Ri did not interpret R. Meir the way that we did.

Before reacting hastily to this new dilemma, I should point out that our interpretation of R. Meir does not necessarily have to be discarded. Although the Ri's opinion appears to rule it out, there are Rishonim - the Ramban and Ritva - who hold that "me-akhshav" does not do away with the problem of "kalta kinyano." In their view, the impact of the "as of now" stipulation is that the parties have committed themselves to consummating the transaction, and they forfeit their right to withdraw - a right which normally exists until the kinyan takes final effect. This is a personal obligation which the sides can undertake, but it has no effect on the transfer itself. Accordingly, we can continue to view "kinyan le-achar zman" in line with the Rambam's definition of the delayed transaction, even when "me-akhshav" has been said.

On the other hand, the Ri certainly requires us to do some rethinking. Moreover, the Rashba goes much further than the Ri in the significance he attributes to "me-akhshav." He thinks that not only does saying "as of now" overcome "kalta kinyano," but that it also precludes retraction by the parties. (Rashba attributes this to Tosafot, but Tosafot in Bava Metzia 16a specifically limit the effect of "me-akhshav" to "kalta kinyano.") This second ramification is not due to separate commitment, as suggested above according to the Ramban, but because the transaction is "ke-ilu chal" - as though already taken effect. Clearly, the significance of the act as independent of the "endpoint" is magnified in the Rashba's view. And this the Rashba says not only regarding "le-achar zman," but even in a case of a davar she-lo ba la- olam according to R. Meir.

5. Understanding R. Meir (B) - a new type of kinyan

We are then compelled to re-examine our basic premises about R. Meir. We have been assuming that R. Meir must agree that a kinyan she-lo ba la-olam cannot possibly take effect before all hindrances are removed. This led us to experiment with various models to explain his view - that the drawbacks affect only the chalut and not the ma'aseh; or that the ma'aseh really refers to a davar she-ba la-olam, because that is the ultimate state of affairs. Both of these options actually interpret R. Meir's dictum - "a person may acquire something which is lo ba la-olam" - in a non-literal fashion. But Tosafot and the Rashba take R. Meir at face value. R. Meir does in fact hold that "lo ba la-olam" is no hindrance, neither regarding the ma'aseh, nor regarding the chalut.

"Davar she-lo ba la-olam" is a new category of kinyan. In a transaction of this nature, the actual situation is never a problem, because the assumption is that the sides are talking about a situation which has yet to come about. R. Meir is not deterred by incompatibility with physical conditions. If the potential is there, the halakha will endorse the vision and foresight of the parties to the deal. The kinyan takes effect immediately and creates an abstract, theoretical transfer, which will be expressed in practice when physical conditions permit. But the delay is a merely gap between theory and practice, not between action and effect. The chalut is there from the outset.

This understanding of R. Meir is not my innovation. The Rashash on our sugya registers astonishment at the validation of kinyan she-lo ba la-olam through a shtar which was destroyed immediately after the ma'aseh: "How could the kinyan or the liberation of the slave take effect as of now, before [the 'owner'] has possession?" His reply is essentially the one outlined above. The core of R. Meir's approach is the elimination of the lacuna between potential and actual, thus allowing for the creation of a kinyan which takes effect immediately, albeit theoretically. Rashash finds precedents which buttress this principle, such as R. Shimon's ruling that hekdesh "which is about to be redeemed, is considered redeemed" (Bava Kama 76b). Following this lead, it is germane to point out that R. Meir himself rules along similar lines that "grapes which are about to be picked are considered picked" (Shavuot 43a). This is indicative of a predilection which may underlie his view on davar she-lo ba la-olam.

6. Conclusion

However, we should remember that even if R. Meir grants current validity to a potential kinyan, he does so with reservation. First of all, even Tosafot agree that kalta kinyano is overcome according to R. Meir only if "me-akhshav" was said. This needs explanation - if the kinyan can occur now, as evidenced by the case of "me-akhshav," how is it delayed in the general case? The answer is simple - in the same way it is delayed in "le-achar shloshim," namely by mutual agreement. In a davar she-lo ba la-olam, R. Meir agrees that the parties presumably want to delay the chalut until it is relevant practically, unless they stipulate otherwise by saying "as of now." The important points are that this delay is not inherently necessary, and also that it doesn't prevent the parties from commencing the transaction while in the state of lo ba la-olam, for the delay refers only to the chalut.

The second reservation is that according to Tosafot, the parties retain the right of retraction until the transaction is completely actualized. This may be understood as a separate right which does not contradict the fact that the deal is considered consummated on the theoretical level. There are other cases where the halakha allows retraction from kinyanim which have been completed.

Summary:

We have reviewed three interpretations of R. Meir:

1. Lo ba la-olam is a problem, but only regarding the chalut, not the ma'aseh. We discounted this approach early on.

2. Lo ba la-olam is a problem even regarding the chalut, but R. Meir views the ma'aseh and the chalut as one continuum, whose final stage may define the whole process as ba la-olam.

3. Lo ba la-olam is not a problem, because R. Meir introduces this category as a new type of kinyan, in which a deal may be completed on the theoretical plane prior to its becoming practically applicable. This understanding allows R. Meir to overcome the problem of "kalta kinyano."

For further iyyun:

1. See Tosafot 63a s.v. Kegon - Tosafot asks what is the purpose of "me-akhshav." We have already referred to the answer of the Ri. Tosafot quote a second answer; what is it? Can we infer anything from it regarding our inquiry into the basis of R. Meir's opinion?

2. See the end of the Tosafot ("u-mihu kasheh le-peirush Ri etc.").

Why does Tosafot find it difficult to apply the solution of "me-akhshav" to delayed transactions, halakha le-ma'aseh?

Sources and questions for next week's shiur:

Next week's shiur will deal with the mishna (63a) and the explanation raised in the gemara concerning "Yeshna li- sekhirut mi-techila ve-ad sof." The original appearance of this principle is on 48a-b, and the sugya there should be studied in conjunction with our own. (48a, "Tanya, asei li shirim..." until 48b, "...ein uman koneh be-shevach kli;" Rashi and Tosafot ad loc.).