Reuven, Shimon, and Levi had learned together in Israel. Although they lived in different cities in the U.S., they still learned together weekly via Zoom.
One day, when they finished learning, Shimon said to Reuven, “I still have a sefer of yours – the Ketzos – that I borrowed several months ago.”
“I was wondering what happened to it,” Reuven said. “Meanwhile, I bought another Ketzos, so I don’t really need it back.”
“I also bought myself a Ketzos,” Shimon replied. “I don’t need it either.”
“I’d be happy to have it,” said Levi. “I still don’t have a Ketzos of my own!”
“All right,” Reuven said to them. “Shimon, instead of returning the Ketzos to me, give it to Levi.”
“Will do!” said Shimon.
The following week, the three learned again. When they finished, Reuven said, “Last week I told Shimon to give my Ketzos to Levi. I thought about it again and would like the Ketzos back. I want to keep one copy in yeshiva and one copy at home.”
“I understand that you now want two copies,” Levi said. “However, you already told Shimon to give your Ketzos to me, so now it’s mine. You can’t retract unilaterally!”
“How is the Ketzos yours?” replied Reuven. “I told Shimon to give it to you, but you didn’t take it from him yet! You didn’t make any sort of kinyan – act of transaction – so it’s not yours yet, and I can still retract!”
The three decided to ask Rabbi Dayan, “Does the Ketzos already belong to Levi? Can Reuven retract now?”
“The Gemara (Gittin 13b; B.B. 144a) teaches that Chazal instituted that a verbal transfer of a loan or entrusted item is valid when the three relevant parties – giver, borrower or guardian, and recipient – are present together (maamad shloshtan),” replied Rabbi Dayan.
“The Gemara describes this as a hilchasa b’lo taama; i.e., it does not conform to the regular rules of kinyan; rather, it was instituted to facilitate transactions with ease (C.M. 126:1).
Rishonim (Rosh Gittin 1:18; Ritva Gittin 13b; Rivash #222) derive from the Gemara (B.B. 149a) that the parties themselves must be present; an agent or letter from the giver is not sufficient. We should not expand beyond the case that Chazal established (C.M. 126:20-21; Sma 126:53,57).
Contemporary poskim address whether a telephone or video conference can be considered maamad shloshtan, since all three parties are simultaneously involved, albeit not physically present.
HaRav Yehoshua Ehrenberg, zt”l (Dvar Yehoshua 4:50) maintains that a telephone conference is considered maamad shloshtan. (His case was a standard telephone call, but the giver knew that the recipient was standing by the borrower and heard the conversation.) He brings support for this from the Rivash, who explains that maamad shloshtan through a letter to the borrower is not valid, since the giver does not know whether the recipient is present when the borrower receives the letter. The implication is that if the giver would know at that time, then it is valid, even though the parties are not physically together (Shach 126:88; see also Even Shoham 126:23).
However, HaRav Asher Weiss, shlita (Minchas Asher Gittin #19) rejects this position. He maintains that even a video conference in which all three parties see and hear each other simultaneously is not a valid maamad shloshtan. He explains that maamad shloshtan is not a regular rabbinic kinyan, but rather an anomalous rabbinic institution, and therefore it is valid only in the specific format that Chazal instituted, where the parties are physically present. A telephone or video conference is not a maamad – a ‘joint presence.’
“Since it is questionable whether the rabbinic institution applies here,” concluded Rabbi Dayan, “Reuven can retract. Only if Levi already took the Ketzos would he be able to keep it.”
Verdict: Some maintain that maamad shloshtan applies also to a telephone or video conference, but others require the physical presence of the three relevant parties. Therefore, the giver can retract, unless the recipient already took possession.
