Shabbat Parashat Bereishit | 5770

This week in the Daf Hayomi, the Gemara (54b) illustrates a very interesting situation that can arise when a gentile sells real-estate to a Jew. When purchasing real-estate there are three forms of kinyan by which the land is transferred from the seller to the buyer: kesef (giving money), shtar (contract of sale given to the buyer from the seller), and chazaka (an act demonstrating ownership done on the land by the buyer).

However, when a gentile sells land to a Jew, if the payment is given before the shtar, a legal anomaly is formed. On the one hand, the gentile, after receiving the payment, removes his ownership from the land. On the other hand, the Jew does not intend to acquire the land until he receives the shtar, the proof of the sale. In this intermediate stage, the Gemara states that the land is hefker, not belonging to either of them, and a third person can attain ownership over the land by doing a chazaka on it. However, the Gemara states that, if there is a government law regarding the purchase of real-estate, then we follow that law.

The question arises; does the third party who attained ownership have to pay to the buyer the amount that he paid the gentile for the land? The Rashbam (d"h harei) and the Rosh (3, 65) claim that he does not have to pay, since the land was hefker. However, Rav Hai Gaon (Sefer Hamekach Vehamemcar 14 d"h aval), Rabeinu Chananel (quoted in the Rosh), the Rambam (Zechia 1, 14) and the Ramban (54b d"h nichsei) all state that the third party who attained ownership must pay the buyer what he paid the gentile.

However, if the land is really considered hefker in this intermediate stage, why does the third party have to pay? From the various Rishonim there appear to be three perspectives as to why he has to pay:

1. Rabeinu Chananel- even though the buyer did not attain ownership over the land, he acquired a lien on it for the amount that he paid.
2. Ramban- since the third party was able to attain ownership only due to the fact that the buyer paid for it, he must pay the buyer for the benefit he received from him.
3. Rav Hai Gaon- the land is not considered absolutely hefker, but rather the third party was only given the option to enter in the buyer's place in the purchase from the gentile. Therefore, he too is considered a buyer and must pay for the land.

The Shulchan Aruch (194, 2) rules according to the majority opinion of the Rishonim, that the third party must pay the buyer what he paid the gentile.