More On "Ain Kinyan Chal Al Kinyan" From The Rogochover

לזכות נעכא גיטל בת רחל אסתר זרעא חיא וקיימא זרעא די לא יפסוק ודי לא יבטול מפתגמי אורייתא

In a recent post we discussed how a חלות cannot take effect upon and replace an already existing חלות. So for example - we cannot derive the קנין of ביאה from the fact that a man takes a יפת תואר at war with ביאה because he already had ביאה with her one time [before her conversion]. Hence, the second ביאה is not a full fledged קנין.

The Rogochover, in his broad sweep, marshals another proof for this principal not from the world of nashim, which is the topic of discussion, but from the world of nezikin. When dealing with concrete issues then it is best to stay local and focus on the matter at hand but what interested the Rogochover were the logical constructs that are the underpinnings of Talmudic law. Therefore, it didn't matter what area of halacha he was discussing, he was always open to proving his point from a seemingly unrelated area of halacha, because the logic was parallel and germane to the topic at hand.

The Mishna in Bava Kamma says [45B]: An ox that was bound by a cord and the door was locked before it and he went out and caused damage, both a tam and a muad are liable [because this is a שמירה פחותה - an inferior watching]. So is the opinion of Rebbi Meir. Rebbi Yehuda said that a tam is liable [because inferior watching is not sufficient] and a muad is patur as it says about a shor muad ולא ישמרנו בעליו - his owner failed to guard it, and this ox is guarded [because a שמירה פחותה is enough].

The gemara says: Rav Adda bar Ahava said, Rebbi Yehuda said a muad is patur only for the צד העדאה - the muad side of the animal [the half he would have to pay over and above the צד תמות the tam side of the animal], but the צד תמות remains in place [and he must pay half damages because a tam requires superior watching which is lacking here].

From here we see that an owner is not chayav in a new chiyuv shmira over his ox when it becomes a muad. Rather, the new obligation is built upon his previous obligation to guard the animal as a tam. Therefore, even after the animal gores for the third time and turns into a muad, the original chiyuv shmira remains in force. Hence, even after it becomes a muad, when he watches it with a שמירה פחותה, he must pay for the tam side for which שמירה פחותה is insufficient even though the muad side is not liable. So we see that a new חלות of muad doesn't replace the first חלות of tam.

The Rogochover continues and says וגיטין מ"ח. As is his wont, he doesn't spell out his intentions but leaves it up to the student to figure it out.... So let's see:-).

The gemara [Gittin 48a] says that according to Rebbi Meir who maintains that קנין פירות כקנין הגוף דמי - the ownership of the rights to a field's produce is tantamount to ownership of the essence of the field, when a child acquires a field from his father, whereupon his father dies, and then the son consecrates it to the Beis Hamikdash, we need a special pasuk to teach us that it is considered a שדה אחוזה - inherited field and not a שדה מקנה - acquired field. [There are various halachic differences between the two types of fields. One is that a שדה אחוזה which is consecrated to the Beis Hamikdash and then sold reverts to the kohanim at yovel unlike a שדה מקנה which when consecrated and then sold reverts back to its ancestral owner at yovel - see Rashi in Gittin and Arachim 14a]. Without the pasuk we would assume that the field has the status of a שדה מקנה and not a שדה אחוזה. He cannot inherit the field after acquiring it because אין קנין חל על קנין. Hence the need for a special pasuk to teach that it nevertheless has the status of a שדה אחוזה.