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Bava Metzia 034: Kinyan
Evan asked:
I want to understand the havah aminah of R'Meir as quoted by Rami bar Chamah
concerning adam makneh devar s'lo bo l'olem. I thought that to transfer
ownership three conditions must be fulfilled:
1) das of the makne,
2) kinyon on the object,
3) and das of the koneh (10th perek Bava Metzia).
When an object does not yet exist one can not make a kinyon on it. How does R'
Meir hold it is chal? We see that one does not necessarily need to make
meshekah on an object since kinyon agav or sudar or chalipin don't require the
transfered object be physically present.
Nevertheless, the object must exist. Perhaps when the object doesn't exist
there is a pigum on the dass of the the koneh, where he can not be sure he will
really receive the object? Is the crux of the machloket that R Meir believes
if something is likely to come into existence or if it is within the control of
a human (a woman is mikadesh on the condition he becomes a ger) then there is
adequate dass of the koneh and the halacha is that there is inadequate dass of
the koneh, but all agree that if the item is unlikely to come into existence
then there is inadequate dass (perhaps of both the koneh and the makneh)?
May I ask on the other side of the question: We allow a woman to sell her
ketubah on the chance she will collect it if her husband predeceases her or if
she gets divorced (Makos); even if this is a relatively unlikely event. We
also allow people to buy lottery tickets even though they know the odds of
winning (Rashi's explanation that the bal hamafkid is willing to give the
unlikely kafel in return for the repayment of his principle). If there is
nothing lacking in the dass of either party in tranfering an asset which does
not yet exist and is unlikely to come into existence, then how can there be a
problem in transferring the perot of a dekel tree or any other item likely to
come into existence according to all opinions?
Thank you so much for accepting my question
Sincerely,
Evan, Englewood, USA
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The Kollel replies:
Dear Evan,
Rav Elchonon Vasserman in Kovetz Shiurim Bava Basra #276 mentions the two ways
to understand the lack of Lo Ba l'Olam- either no Semichas Da'as or no
possibilty of Kinyan if there's no object in existence. He proves that it is a
Machlokes between the Maharam m'Rottenberg (insufficient Da'as) and R. Yechiel
m'Paris from the Ba'alei Tosfos (no item).
Rebbi Meir says its Koneh. If the problem is Da'as then he holds there is
enough Da'as- at least when its occurant to happen or its partially Ba l'Olam
(see Tosfos DH Eimor BB 79b). If the lack is the item, Rebbi Meir learns that
one can make a valid agreement between people for when the item comes into
existence.
Your cases of Kesuvah and lottery tickets are not Lo Ba l'Olam. Even according
to the Rabanan they work. He buys the actual Kesuvah and ticket now and
therefore obtains all its rights. It is similar to the Gemara's answer here
that he bought the animal itself for its rights to the Kefel.
All the best,
Reuven Weiner
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