The Mishnah (5:7) discussed forms of acquisitions. In particular the Mishnah discussed when in the measuring and sale of produce is the sale complete. The Mishnah explains that if the purchaser draws the produce towards him (meshicha)1 yet has not measured the produce, the sale has been performed. In other words, since meshicha is an act of acquisition and the price had been agreed upon (Bartenura), it is too late for the seller to go back and sell to another at a better price. The Mishnah continues that if the produce was measured but meshicha was not yet performed, then the sale is not complete.
The Bartenura explains the case in the Mishnah is where the seller is doing the measuring. He continues that the seller could have even been using the buyer’s measuring container. Even though one’s utensil can acquire for him, the case would be where the measure is performed in reshut harabim, and one’s utensils do not acquire there.
The Bartenura continues that if however the buyer was doing the measuring, he would have acquired the produce when raising it; he would have performed hagba’ah. The Ritva explains that this is understood from the simple meaning of the Mishnah. The terms mashach and madad (measured) were used in reference to those who perform those activities.
The Rashba however sites the Raavad who explains that even if the buyer performed the measuring the ruling would be the same. He is measuring for the benefit of both himself and the seller. For an act of acquisition to be defined as such it must be solely for the purchasers benefit.
The Rashba brings an additional reason why even if the purchaser performs the measuring the sale is complete. The Gemara (Yevamot 52b) explains that if someone hoes in the field of ger (that has died with no heirs) but does so thinking it is his field, then he has not acquired the field. The Rashba points out that since the action was performed without the intent of acquisition, then the action has no affect. Similarly in our case, the measuring without the intent to acquire would not be significant.
The Ritva however differentiates between the case of Yevamot and our case. In Yevamot since the property is hefker the intention is required. In our case however there are two parties. Since there is also da’at makneh (intention of the seller) the absence of da’at koneh when measuring does not detract from it being a ma’aseh kinyan.
1 For meshicha to be affective, the case must be referring to where the sale is occurring in a simta or a chatzer that belongs to both of them.
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