The gemara (Temurah 4) has a machlokes Abaye and Rava whether ee avid lo mehanei -- if a person does an action that would normally produce a certain halachic outcome, but that action was done b’issur, is the resultant outcome produced? Yesterday we discussed the issur of lo tachmod, which according to the Rambam is violated not just if you seize a neighbor’s property which you covet, but even if you talk your neighbor into selling the item. The Magid Mishne asks why a sale done in this circumstance is valid. Since the buyer is in violation of lo tachmod, why not apply the rule of ee avid lo mehanei and invalidate the sale?
M.M. answers by comparing this case to that of a thief who steals wool and makes it into a garment. Despite the issur of gezel, the halacha is that the thief is koneh the wool and pays the owner back only the value of what was stolen, not the garment. Here too, despite the issur involved in the transaction, the buyer is koneh the item. I am not clear on what the M.M. means. In the case of the stolen wool, the object has been transformed from what it once was. The same does not apply in our case.
Perhaps we can answer the M.M.’s question using the sevara of the Steipler discussed in yesterday’s post. The Steipler explained that lo tachmod is defined as a lav she'ain bo ma'aseh because what is prohibited is coveting a neighbor’s property; the act of buying or seizing that property just serves as a means through which halacha measures or recognizes that existance of desire (coveting). EE avid lo mehanei applies on ly where the act being done is the focus of the issur; in our case, the sale is just a siman, an indicator as to what lies in a person's heart.
Let's make things a little more challenging: the Torah prohibits selling land “latzmisus” – permanently. Rambam (Hil. Shemita ch 11) writes that property must be restored to its original owner during the Yovel, even if sold for perpetuity. Yet, the implication of the Rambam is that such a sale is valid – just the yovel law overrides the terms and conditions. Why is the sale valid? Here the language of the issur – “lo timacheir latzmisus” – clearly suggests that the sale itself is what is prohibited, so why not apply the rule of ee avid lo mehanei?
Can you come up with a chiluk between the din of latzmisus and lo tachmod? Can you come up with another way to answer this question of the M.M.? It's a snowy day in NY, so you may be home in your armchair (I had to trudge into work) -- now you have something to ponder while sipping the hot chocolate.
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It would seem to be a point for labor over capital.
ReplyDelete^ lol
ReplyDeleteI asked the initial q when learning Kiddushin last year, when a man is mekadesh a woman who is already betrothed/married, and I didn't understand the q for this reason - it is not shaich for the kiddushin to be chal, so the question is a non-starter...
Some thoughts:
ReplyDeleteYovel is an afkaata de'malchusa - essentially the property is always sold latzmisus so selling it deliberately latzmisus does not collide with the hafkaa. Yovel has the ability to reverse a transaction.
Lo sachmod - the maggid mishna seems to mean that ee ovid lo mehani applies to a halachical chalos (such as teruma) which the Torah effects, not to a mundane chalos which you effect. When you make a kinyan, the main driver of the kinyan is your da'as. For example Reb Chaim Schmuelevitz z"l quotes a gemara in kiddushin that says that if two people agree on the conditions for a kiddushin and then omdu ve'kidshu - hen hen hadvarim haniknin be'amira. The kinyan is chal becuase they are so intent on the agreement. Rb Chaim z"l proves form this that the koach hamaphil in any kinyan is the daas hakonim. A maaseh kinyan is necessary in a case where you do not have such total gemirus da'as to formalise the kinyan but the basis for the formal kinyan is still the gemiras daas of the konim.
pc :-)
>>>the maggid mishna seems to mean that ee ovid lo mehani applies to a halachical chalos (such as teruma) which the Torah effects, not to a mundane chalos which you effect
ReplyDeleteI don't see how you get this from the analogy to gezel+shinuy. In any case, the gemara in Temurah asks why we don't say ee avid lo mehanei by the case of gezel + shinuy, which implies is should work, contrary to your thesis.
Ho gufo kashye! If the gemara has to bring a passuk for lo tigzol and there is no passuk for lo tachmod then how can the magid mishna compare them?
ReplyDeleteElo mai either:
1. The gemara means a klal that in momonos there is no din of ee ovid lo mehani
or
2. In a case of lo tigzol where the transfer of reshus is mitzad echad you need a passuk to tell you that the kinyan works but in the case of kinyan where they agree then you do not need a passuk and the m"m means that just as in lo tigzol it works together with a passuk so too here it works with no passuk
or
3. The kavana of the gazlan is to acquire the chefetz not to make a maaseh kinyan so why does it become his? Elo mai this is a kinyan hatorah so we have the problem ee ovid lo mehani. Why does the Torah make the kinyan for the gazlan - and it is similar to the other cases in the gemara which are a chalos hatorah. But then what is the m"m's raya?
or
4. Maybe the Torah allows the gazlan to be motzi the chefetz from the reshus of the nigzal but does not make the kinyan for him, the gazlan makes the kinyan. Therefore the m"m has a rayah.
pc :-)