On the first day of Sukkos you need to own a lulav to be yotzei ("lachem"). You can't borrow a lulav, but you can accept someone else's as a matanah, a gift. The giver has a right to stipulate that the lulav must be returned, a matanah al menas l'hachzir. The Rosh writes that to satisfy this condition the borrower must be makneh the lulav back to the original owner with a formal kinyan (which is why this would not work with a child, who has no right to be makneh things). As we once discussed, the Ketzos (241) disagrees and says a matanah al menas l'hachzir works so long as the object is returned, even without a formal kinyan. According to the Ketzos, matanah al menas l'hachzir is a "kinyan l'zman", a form of temporary ownership in effect for a specific duration of time., e.g. so long as it takes to perform the mitzvah of netilas lulav Once the time is up, the original owner automatically resumes control without a formal kinyan being required. At the heart of the dispute is the following question: is temporary ownership sufficient to satisfy the requirement of “lachem”?
Last post we discussed the case of stolen schach that m’derabbanan is considered part of the sukkah for the duration of sukkos (i.e. the thief has no obligation to dismantle the sukkah and return the stolen goods), but after sukkos, once the sukkah is dismantled anyway, must be returned. The Avnei Miluim (28:53) offers this case as proof that he is right -- ownership of the schach even for the limited duration of a week is considered sufficient to fulfill the mitzvah of sukkah even according to those Tana’im who require "lachem" md’oraysa for sukkah.
Is this proof really ironclad? My son suggested that one can distinguish between these cases. In the case of matanah al menas l’hachzir of lulav, it is the choice by the owner to grant temporary ownership instead of full ownership which is seen by the Rosh as limiting the kinyan, diminishing “lachem”. In the case of the stolen goods, the kinyan lasts only for a week not because of any choice by the owner or recipient, but simply because the chachamim re-imposed the obligation to return the goods after the sukkah was dismantled. (R’ Scheinberg draws a similar distinction in Mishmeres Chaim vol. II.)
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you ask if a kinyan lzman is enough for lachem. i have a thought and i'd like to know your opinion-or your son. in the first mishnah of bikurim it says if your mavrich the tree from someones elses field you dont bring bikkurim.and its learnt from reisheit bikurei admascha, ad sheteha kol hagidulin meadmascha.
ReplyDeletethen the gemara brings a braisa that says but if you got reshus then you bring bikurim. on that braisa is a machklokes r yona and r yosef if the heter of reshus is even when its "reshus le'shaah" or or only reshus leolam. seemingly the machlokes ketzos and rosh would be mach amoraim. and we pasken even reshus lesha helps i.e. like ketos. (see rambam raavad 2,11 bikurim)
so what do you say?
Just saw your comment and need to look into it. Off the cuff, there the kinyan sha'ah works because it removes the shem gazlan -- "kulhu m'shum toras hagazlan..." -- which is not the same thing as it being "lachem". The problem is that admascha is mashma ownership, as you wrote.
ReplyDeletegreat question.
ReplyDeleteits definetly not pashut.
if i recall though, r isser zalman tries to miyashev r yochanan with the mishnah.
but 2 things to think about is- that was exactly r yose's question back to r yochanah (that it says admatcha in the mishnah) and r yochanan didnt respond, so its not clear.
also, a similar issue which might be of help- bava basra 26b ula holds plant within 16 amos no bring. rashi says b/c of admatcha and tos bring r chananel that says b.c of gezel. sounds just like the machlokes r yose and r yona. and i dont remember who discusses that, but in raza dshabsi one of the headers is the afformentioned