Question: Why do we change the first Tana's words to say that Osiyos are acquired through Mesirah?

We should say that the first Tana says that a boat and Osiyos are acquired through Meshichah, and the only argument is that R. Nasan requires a document [for Osiyos] with Meshichah, and Rabanan do not require it!

Answer: If so, the Beraisa below, which taught that Osiyos are acquired through Mesirah, would not be like any Tana.

Implied question: Why didn't we say that Osiyos are acquired through Meshichah and a document?

Answer: Since we need to distinguish between Osiyos and a boat according to R. Nasan, he prefers to teach Mesirah [for Osiyos], in order that the Beraisa below will be like all opinions.

Assertion: We must say that every "Osiyos" in our Sugya refers to a [heavy] sack full of documents, which it is not normal to lift it;

If not, how is it acquired through Mesirah or Mesirah? It says below (86a) that anything that it is normal to lift, it is acquired only through Hagbahah!

Explanation: R. Nasan holds like Shmuel, who says "until he pulls all of it";

Just like for Osiyos, he requires a more important Kinyan that the first Tana does, also regarding a boat.

Implied question: Why did [the Tana] need to elaborate and say all this?

Answer: Had he taught only "until he writes and hands over", one might have thought that surely, Mesirah alone does not help unless there is writing with it, but writing alone helps.

Suggestion: It seems that we equate Mesirah of Osiyos with Mesirah of a boat.

Support: It says "also a boat should be acquired through Mesirah." "Also" connotes like Osiyos.

Rejection (Ri): One cannot say so. We find Mesirah only regarding a boat and animals, but other Metaltelim are not acquired through Mesirah;

Source #1: A Mishnah (Kidushin 26a) says that property without Achrayus (Metaltelim) is acquired only through Meshichah. This implies that it is not acquired through Mesirah!

Consequence: Through Mesirah, one does not acquire even the parchment to cork his bottle. All the more so it does not help to acquire the lien [in the document]!

Source #2: It says "until he writes and hands over." This implies that Osiyos require a more important Kinyan than other matters!

Source #3: [The Beraisa] teaches that a boat is acquired through Meshichah, and Osiyos through Mesirah, and we establish this to discuss a Simta, where Mesirah does not acquire;

If so, how did it teach that they are acquired through Mesirah?!

Explanation (Ri): With the Mesirah of Osiyos, also Meshichah is required.

Support: Below (151a), the Gemara asked about a sack of documents (or documents wrapped together) "he did not do Meshichah!"

Implied question: Why does [the Gemara] always mention Mesirah of documents, even though [also] Meshichah is needed?

Answer #1: This is because we require Mesirah from hand to hand.

Question: Elsewhere, we do not require Mesirah from hand to hand, like I explained above (75b DH Achzah)!

Answer: Here we require [from hand to hand,] more [than we require elsewhere] in order to acquire the lien in [the document].

Answer #2: We do not require [Mesirah] from hand to hand [even for documents]. In any case, it mentions Mesirah because we require Da'as Acheres to be Makneh them, like other cases of Mesirah.

This excludes one who is Mafkir his documents. One who takes them does not acquire what is written in them, since there is no Mesirah, for no Da'as Acheres is Makneh them.

Observation: Below (76b), we establish this to be in Reshus ha'Rabim.

Explanation #1 (Rashbam): Mesirah acquires in Reshus ha'Rabim, because it is impossible to do Meshichah there. However, in a Simta, where Meshichah applies, Mesirah does not acquire, for it is an inferior Kinyan.

Question #1 (R. Tam): Are Meshichah and Mesirah Mitzvos, that one may do only the best one?!

Answer (Ri): This is not difficult. We find like this below, that Hagbahah, which is more esteemed, is Mevatel other Kinyanim! (Pnei Yehoshua Kidushin 25b - R. Tam holds that Hagbahah is different, for it is done only for the sake of a Kinyan.)

Question #2 (R. Tam): All the questions below (86a) that we ask against the opinion that Hagbahah is Mevatel other Kinyanim, we should have asked also here, since Meshichah is Mevatel Mesirah!

Answer (Ri): This is not difficult. Is everything the same?! If Mesirah, which is inferior, is Batel due to Meshichah, Meshichah, which is esteemed, need not be Batel due to Hagbahah!

Question #3 (R. Tam): If Mesirah does not help in a Simta, when we ask in Kidushin (25b) according to Rav, who holds that a large (work) animal is acquired through Meshichah, from our Mishnah there, which teaches that a large animal is acquired through Mesirah...

We should answer that our Mishnah discusses in Reshus ha'Rabim, where Meshichah does not apply, and Rav discusses a Simta!

Answer (Ri): Since Meshichah is more important than Mesirah, if so, according to Rav, who said that it is acquired through Meshichah, it is acquired only through Meshichah, but not through Mesirah, even in Reshus ha'Rabim;

If Rav held that Mesirah helps in Reshus ha'Rabim, if so he should have taught Mesirah in Reshus ha'Rabim, and all the more so [we would know] Meshichah in a Simta!

Rather, surely [Rav] excludes Mesirah in Reshus ha'Rabim.

Implied question (against the Ri): Here, the Beraisa teaches that a boat is acquired through Meshichah, even though it does not exclude Mesirah in Reshus ha'Rabim!

Answer: We can say that it mentioned Meshichah because it wants to teach that even in a Simta, where [other matters] require Meshichah, Osiyos are acquired through Mesirah;

This teaches that Mesirah of Osiyos is not mere holding, for Mesirah does not help in a Simta!

Rather, with Meshichah we require Mesirah, like I explained above (DH Iy).

Explanation #2 (R. Tam): Mesirah is better than Meshichah, because Mesirah is from hand to hand, and it is in front of him (the Makneh), and it acquires in Reshus ha'Rabim, and all the more so in a Simta;

Even Meshichah acquires in a Simta, like Abaye and Rava say.

Explanation #2 (cont): The Mishnah in Kidushin (25b) says that a large animal is acquired through Mesirah, i.e. only through Mesirah, but Meshichah does not acquire, even in a Simta.

Support: Now, it is a proper question against Rav! (We cannot answer that Meshichah acquires in a Simta.)

Rebuttal #1: [R. Tam] explained that Mesirah is only from hand to hand. The Ri disagrees, like I explained above.

Rebuttal #2 (Ri): What is [R. Tam's] source to require that [Mesirah] is only in front of [the Makneh]?

Rebuttal #3 (Ri): According to R. Tam, what forced [the Gemara] to [give a poor] answer "here (Meshichah acquires a boat) in a Simta, and here (Mesirah acquires it) in a Reshus ha'Rabim", and need to say with difficulty [that Chachamim mean] "until he does Meshichah from Reshus ha'Rabim to a Simta"?

We should establish both of them in a Simta, and they argue about adamancy, like we conclude below!

Answer (Rashba): This is not difficult. Since Mesirah is esteemed, wherever [the Tana] teaches Mesirah, it is only Mesirah, and not Meshichah;

Therefore, we can establish it only in Reshus ha'Rabim.

Rebuttal #4: [According to R. Tam,] the question "a boat should be acquired also through Mesirah!" is difficult. It connotes that [Mesirah] should acquire also, along with Meshichah. This connotes that Meshichah is better;

According to R. Tam, it should have said "according to Rebbi, a boat is acquired only through Mesirah!

Rebuttal #5: Also Rabanan's words, "until he does Meshichah", connote only Meshichah, and not Mesirah!

Answer (to Rebuttal #5): According to the conclusion, that the case is, he said "do Meshichah and acquire", and Rabanan's reason is due to adamancy, it is fine that they require Meshichah, even though it is inferior.

Question: If he is adamant even for an inferior [Kinyan], why does it help to rent its place?

Answer: Renting its place is like Meshichah, in which he brings it to his Reshus;

Initially, when we thought that the reason is not due to adamancy, we thought that Rabanan's reason is because Mesirah does not acquire in a Simta;

When we establish it in Reshus ha'Rabim, before we establish that the reason is due to adamancy, we wanted to say that their reason is because they hold that Mesirah does not acquire in Reshus ha'Rabim.

Suggestion: Perhaps initially, we thought that they argue about the following. Rebbi holds that Mesirah applies to a boat, and Rabanan hold that it does not apply!

Rejection: If so, why does it say "let us say that Abaye and Rava hold like Rebbi [and unlike Chachamim!"? They could hold also like Rabanan, since Rabanan's reason is because Mesirah does not apply to a boat!

Rather, surely it is obvious to [the Makshan] that it applies.

Question #3 (against R. Tam): What was the question in Kidushin (25b) against Rav "our Mishnah taught only Mesirah"?

A Mishnah teaches also Meshichah, in Bava Metzi'a (2a, 8b)! If two were riding on an animal, or one was riding and one was leading it, they divide it, for each acquired half.

Inference: It is acquired through Meshichah!

Answer: There we discuss a Metzi'ah. It is acquired through Meshichah because it is impossible through Mesirah, for who can hand it over to him?!

Question: This connotes that if we discussed in a Simta, it would be fine;

What is the reason? Since [the Makshan] knew Abaye and Rava's teaching, he should ask how Mesirah helps in a Simta, according to the Ri!

Answer: If we discussed in a Simta, it would be fine that Rebbi and Rabanan argue about whether or not Mesirah helps in a Simta, and Abaye and Rava hold like Rabanan;

However, if we discussed in a Reshus ha'Rabim, Abaye and Rava are not like Rebbi, and not like Rabanan, for even Rebbi agrees that Meshichah acquires!

Question (Rashba): Also if we discussed in a Simta, we could ask from whom he rented it!

Answer: We could establish it in a joint Reshus [of the buyer and seller].

Explanation #1 (Rashi): "Reshus Ba'alim" is [the owner's, i.e.] the seller's premises.

Objection (Rashba): It connotes that he does not acquire through Mesirah, until he rents the place;

Inference: According to Rebbi, he acquires through Mesirah. In the seller's Reshus, obviously he does not acquire through Mesirah. Only in a Reshus that is not of either of them (the buyer or seller), Abaye and Rava said that Mesirah acquires.

Explanation #2 (Rashba, Ri): "Reshus Ba'alim" is not the seller's premises. Rather, it is a Reshus that has an owner, e.g. a Reshus that does not belong to either of them.

Question: Below (165a), Abaye says that R. Shimon ben Gamliel, R. Shimon and R. Elazar all hold that Mar'eh Makom Hu Lo (one is not adamant. He merely suggests how to do something);

Why didn't he list Rebbi with them?

Answer #1: He lists only those taught in a Mishnah.

Answer #2: (Rashba): We could reject [saying that Rebbi holds that Mar'eh Makom Hu Lo], and say that they argue about Mesirah, whether or not it acquires in a Simta.

Explanation (Rashba): Do not bring a proof that Rav Papa holds that Osiyos are not acquired through Mesirah;

Perhaps Rav Papa holds that one must bring a proof [that the owner handed over the document to him], therefore he must write to him, so he will have a proof, but not because Osiyos are not acquired through Mesirah!

Note: If so, why did Rav Ashi ask "if he did not write this, does he sell the document to cork a bottle?!" In any case he sold the content. The writing is merely a proof! Mahadura Basra says "one can resolve this." I.e. Rav Ashi asks that "acquire it" should suffice. Why must he add "and all liens that it creates"? (Yishuv ha'Da'as of ha'Gaon Rav C. Kanievsky, Shlita)

Observation: However, if Rav Papa holds that one must bring a proof according to everyone, that also according to Rebbi, who holds that Osiyos are acquired through Mesirah, he must write to him "acquire it and all liens in it", we can bring a proof that the Halachah does not follow Rebbi.

Source - (Kidushin 47b - Beraisa): [If one told a woman] "be Mekudeshes to me with [this] loan document", R. Meir says that she is Mekudeshes, and Chachamim say that she is not Mekudeshes;

Citation (47b) Version #1: They argue about Rebbi's law. R. Meir holds like Rebbi, that Osiyos are acquired through Mesirah, and Rabanan disagree with Rebbi.

Citation (cont) Version #2: All disagree with Rebbi. They argue about Rav Papa's law. Rav Papa says that one who sold a document to his friend must write to him...

Inference: Since it did not say "all hold like Rebbi", this shows that the Halachah does not follow Rebbi.

Opinion #1: However, if [Rav Papa] said his law only according to Chachamim, who say that he must write and hand over, but according to Rebbi, who says that he acquires through Mesirah alone, since [Rebbi] is lenient about the Kinyan, he acquires even though he did not say 'acquire it and all liens that it creates'...

[If so], there is no proof from there [that the Halachah does not follow Rebbi]. We could not have said that all hold like Rebbi, for then we could not say that they argue about Rav Papa's law.

Opinion #2 (Rashba): (In any case we can infer this.) It says afterwards "all hold like Rav Papa. Here, they argue about Shmuel's law;

If the Halachah follows Rebbi, it should have said "no one holds like Rav Papa", since Rav Papa is only according to Rabanan, and the Halachah does not follow them!

Conclusion: Rather, surely the Halachah follows Rabanan. Osiyos are not acquired through Mesirah.

Disclaimer (Rashba): Also this can be rejected. Had it said "no one holds like Rav Papa", this would connote that Rav Papa's teaching is wrong, but really, Rav Papa's words are correct according to Rabanan.

Inference: Below (147b), it connotes that a sale of a document is only mid'Rabanan.

Source - Citation (147b - Rava citing Rav Nachman): Matanas Shechiv Mera is only mid'Rabanan.

Citation (cont) Question: Did Rav Nachman really say so? Rav Nachman said, even though Shmuel said "if one sold a loan document to his friend, and [the seller] pardoned it, it is pardoned, and even the [seller's] heir can pardon"...

Citation (cont): Shmuel agrees that if one gave [a debt owed to him] through Matanas Shechiv Mera, [the giver] cannot pardon it.

Citation (cont.): Granted, if you will say that Matanas Shechiv Mera is mid'Oraisa, this is why he cannot pardon. However, if it is only mid'Rabanan, why can't he pardon?

Inference: If one sells a document, since he can pardon it, [the sale] is mid'Rabanan.

Implied question: [If mid'Oraisa documents cannot be sold,] why did the Gemara (Bava Metzi'a 56b) need [a verse] to exclude documents from Ona'ah?

Answer: [It is needed for] one who found a document after despair and sells it to the owner for an inflated price, or one borrowed or bought without a document, and he gives money to [the seller, or the lender pays the borrower] to write a document for him.

Note: Tosfos would read better if the text said "or one lent [or bought without a document, and he gives money to [the borrower or seller] to write...] However, I did not find anyone who brings such a text.

Question: Why doesn't he acquire mid'Oraisa also the Shibud written in it?