SUMMARY
דף ע"ט
תקנו משיכה בשומרים
The Torah does not require a buyer to take possession in order to acquire his purchase. Paying the money acquires it for him. The Rabbis instituted a קנין משיכה. He must take possession שמא נשרפו חיטך בעלייה. They were concerned the seller would not every precaution to prevent damage to the purchased item since it is no longer his. A custodian guards it on behalf of the owner. Is he required a משיכה or he becomes responsible when he agrees to watch it.
The גמרא proves it from our משנה. נתנו...לשומר חינם...והיה מושכו ומת ברשות בעלים...פטור...הוציאו חייב. The thief instructed a custodian to watch the animal he stole he is liable if something happened to it outside the domain of the owner. We see that a custodian has to take possession. Non-movable property Just a land is acquired by either the payment, bill of sale or a proprietary act such as plowing, locking a gate, a rental is consummated in the same way even where there is no transfer of ownership.
הכישה במקל If one prods the animal causing it move it is an Acquisition. Difference between a גנב וגזלן One who hides from the owner of the stolen item such as the law of רבי אלעזר that hid in the forest to steal animals pasturing in the area is a thief that pays a fine. A גזלן that does not pay a fine according to רבי אבהו is one who confronts the victim head-on; according to רבי יוחנן if they hide not to chase away their victims that is also a גזלן.
The גנב pays a fine because he fears man and not Hashem. He pays more for a work animal such as an ox for he caused the owner an additional loss. Another perspective is the thief carrying the lamb embarrassed himself he pays less.
