Thursday, January 02, 2014

birchas shmuel on pidyon haben

The gemara (Kid 8a) writes that a kohen cannot accept a token gift in lieu of payment for pidyon haben and claim that to him that gift item is worth $5.  Tosfos asks why not.  How is this different than a matanah al menas l’hachzir, where the kohen at the end of the day walks away with nothing in his pocket?  The answer to Tos question is glaringly obvious.  In the former case of the token gift, the kohen received less than $5.  In case of matanah al menas l’hachzir, the Kohen did receive $5, just he agreed to give it back.  In one case there is a nesina, albeit one that must be returned, in the other case there is no nesina.  When the answer is so obvious, we need to understand what Tos was asking.

The Birchas Shmuel (Kid 5) explains Tos question like this: the father has a debt to the sheivet kohanim of $5.  An individual kohen who accepts a matanah al menas l’hachzir is in effect forfeiting money owed to the entire sheiveit.  If the Torah allows an individual kohen to dictate the terms of the debt to the sheivet and to even surrender money, why can an individual kohen not decide that a token item is worth $5 to him and accept that in fulfillment of the debt?  Once we allow  individual choice to dictate the terms, what are the boundaries?

The answer is that there are two dinim in pidyon: 1) a debt; 2) an obligation to do a ma’aseh nesina.  A kohen can define the terms of the debt, but only once the father fulfills the Torah mandated obligation to do a ma’aseh nesina. 
 
I was wondering if this helps use understand the machlokes Avnei Miluim (29:13) and Minchas Chinuch (392) whether you can fulfill pidyon haben by giving a mashkon to a kohen.  The Av"M writes that even though a mashkon cannot be used to effect kiddushin or make kinyanim, it can work for a pidyon haben.  (I think you have to assume that giving a mashkon for $5 is worth $5, otherwise there is nothing to talk about -- Tos. sevara would preclude mashkon from working just as it precludes the token item.)  The M"Ch argues.  A mashkon is nothing more than a shibud, a reinforced IOU if you will.  A shibud for payment already exists by virtue of the mitzvah -- giving a mashkon adds nothing to father's already existing obligation.
 
In the case of a token gift, the kohen wants to forgive the balance of the debt without the father doing a full ma'aseh nesina.  The case of mashon sounds like the flip side.  The debt of $5 is unchanged (shibud before giving the mashkon, shibud afterwards, as the M"Ch argues), but in this case the father has done a ma'aseh nesina by giving a mashkon. 

1 comment:

  1. I respectfully disagree.
    Whereas by a matana al-mnas l'hachzir you have (by definition) an act of nesina,
    by a mashkon there is absolutely no act of nesina.
    (Ya, I agree with the Minchas Chinuch.)

    ReplyDelete