temporary ownership - kinyan l'zman

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.)

does a kinyan derabbanan have a chalos d'oraysa? - stolen schach

Before R"H a fellow blogger bemoaned the lack of attention paid to the Ketzos these days, as bnei torah spend more time delving into the brisker lomdus of the great roshei yeshivos rather than reading classics. Maybe we should devote more time in the coming year to the Ketzos, Shmaytza, and Avnei Miluim... this sukkos piece is a good place to start, as it is two parter; you get twice the lomdus for the same mareh mekomos.

There is a mitzvah to return stolen goods. If you steal a beam and use it in your home, the chachamim made a special takanah as an incentive to tshuvah and allow you to pay for the beam rather than force you to dismantle your home to return it. What if the stolen beam was used in a sukkah? The gemara says that for the duration of sukkos the beam is considered owned by the thief -- he is obligated to repay the original owner, but we do not force the dismantling of the sukkah any more than we would force the dismantling of a home. However, once sukkos is over and the sukkah is dismantled anyway, the original beam must be returned.

Yesterday we discussed whether a kinyan derabbanan has a chalos d'oraysa (parenthetically, someone asked a great kashe in the comments that is worth taking a look at). The Sha'ar haMelech suggests that this case of the stolen beam can help us resolve that issue. Min haTorah the stolen beam is not owner by the thief -- it should be returned. It is only the takanah derabbanan that allows the thief to keep it. QED: by virtue of a takanah derabbanan we have a chalos of a sukkah that is kosher min hatorah!

The Avnei Miluim (28:33) rejects this proof. There is a basic difference between a stolen lulav (for example) and a stolen sukkah (actually, stolen schach). A stolen lulav is pasul because the Torah requires ownership of the lulav as a condition of fulfilling the mitzvah; a thief is not the lulav's true owner. A stolen sukkah is pasul not because the Torah requires ownership of a sukkah -- the reason a stolen sukkah is pasul is simply because stolen goods are unacceptable for a mitzvah purpose (mitzvah haba'ah b'aveira). A kinyan derabbanan may not have a chalos d'oraysa in the sense of being "yours" from a Torah perspective, but a kinyan derabbanan is certainly sufficient to remove the label of "stolen goods" from the object. Think about it this way: if you make a kinyan derabbanan on an item without a kinyan min haTorah, whether or not the object is truly "yours", it is inconceivable that min haTorah you should be considered a thief!

The Avnei Miluim uses this same case as proof in a different controversy - stay tuned for part II.

hefker (III)

The machlokes (see yesterday’s post) between Rashi and Tosfos whether hefker simply means others have the right to take an object or whether it is an actual hakna’ah out of the owner’s reshus helps explain another machlokes Rashi and Tosfos which we discussed Pesach time. Rashi (Pesachim 4) writes that bitul chameitz is a fulfillment of the mitzvah of tashbisu. Tosfos, however, disagrees and says that bitul is simply a way of declaring chameitz to be hefker, eliminating the need to dispose of it and fulfill tashbisu.

The Ketzos explains that Rashi could not possibly explain bitul using the model of hefker. According to Rashi, hefker is simply a pledge which grants others the right to take an object. Even if one is mafkir chameitz, as long as no one has yet taken it, it is still considered in the possession of its original owner who would therefore be in violation of bal year’eh. Only because bitul is considered an act of destroying chameitz does is have any effect.

A similar machlokes with respect to chameitz that may hinge on this issue is whether a shliach can be appointed to do bitul. The Ran writes that shlichus does not work because one cannot appoint a shliach to be mafkir one’s property. The Beis Yosef disagrees and distinguishes between bitul chameitz and other forms of hefker. If hefker is a form of neder (coming back to the Rambam’s formulation), then just as one cannot appoint a shliach to take a neder on one’s behalf, one cannot appoint a shliach to be mafkir on one’s behalf. But if bitul is not a form of hefker (or if it is a different type of hefker that functions more like a real kinyan), then there is more of a reason to allow shlichus in that context.

why a katan / ketana is excluded from shlichus

While on the topic of shlichus – why is it that a katan cannot be a shaliach? I count two or possibly three reasons, depending on how finely you want to split hairs. Rashi in Bava Metziya (71b) points to the derivation of shlichus from the parsha of hafrashas terumah. Since a katan cannot be mafrish terumah or make nidrei hekdesh, he is excluded from shlichus. Rashi in Kiddushin (42a) points to the derivation of shlichus from the parsha of gittin where the Torah uses the term “ish” (“ki yikach ish”), which excludes a katan. Now we get to the hairsplitting part. The way I read Rashi is that the exclusion is based on the gezeiras hakasuv that specifies “ish”. The last Ketzos in Hil. Shlichus, however, explains that a katan is excluded because a katan cannot marry or divorce. What difference does it make if you read it as an explicit gezeiras hakasuv or an implicit sevara? If it is a gezeiras hakasuv I’m not sure you need to be bothered by the Ketzos’ problem of how to exclude a ktana who is capable of getting married provided her father accepts kiddushin on her behalf.

The Ketzos explains that the two reasons offered by Rashi may depend on the issue of whether the halacha of “mufla hasamuch l’ish” is a din d’oraysa or not (as discussed in a recent daf yomi). If “mufla hasamuch l’ish” is a din d’oraysa, it means a child of 12, who is technically a katan, is still capable of being mafrish terumah or making nidrei hekdesh. Therefore, we cannot derive the exclusion of a katan from shlichus from the parsha of terumah. Instead, we have a source from the parsha of gittin.

This same issue may explain a difficult Rambam. Whatever the reason a katan/ktana cannot be a shliach, the same logic would also disqualify him/her from being a meshaleyach as well. The Rambam (Gittin 6:9) writes that a ketana cannot appoint a shliach kabbalah to receive her get because witnesses must testify that the shliach was properly appointed, and witnesses cannot testify as to the competence of a ketana who lacks da’as to make such an appointment. The Ra’avad offers a far simpler reason – the parsha of terumah teaches us that a katan/ketana is excluded from shlichus. Why does the Rambam need to re-invent the halachic wheel and suggest a new sevara?

The Ketzos explains that the Ra’avad must hold that that a mufla samuch l'ish cannot be mafrish terumah and therefore the parsha of terumah serves as a perfect source for the exclusion of a katan (like Rashi in Bava Metziya). Rambam disagrees and holds that a katan (who is mufla samuch l’ish) can be mafrish terumah and therefore suggests a sevara as a source.

I would be happy if I could find or work out another approach to the Rambam which still accepts the the parsha of terumah as the source for the exclusion of a katan but requires the additional sevara to explain some unique aspect of shlichus kabbalah. Don’t have this worked out yet, so consider it food for thought.

machatzis hashekel and kinyanim by ketanim

Even though women and minors are exempt from machatzis hashekel (as discussed in yesterday’s post), they are permitted to donate if they so choose. The only catch is that the money must be donated to the public; a korban tzibur cannot be bought from money over which an individual retains private rights of ownership. The Minchas Chinuch quotes a question raised by the Sha’ar haMelech and Ktzos (235:4): We are familiar from the laws of sukkos with the din that a katan cannot make kinyanim. One should not give a lulav to a katan on the first day of Yom Tov (before one has fulfilled the mitzvah) because the lulav must be owned (“lachem”) and a katan can acquire the lulav but has no ability to be makneh the lulav back to its adult owner. By that same token, a katan should have no ability to be makneh his own machatzis hashekel to the public!

Perhaps the simplest solution to this question (which the Minchas Chinuch rejects) is to accept that the kinyan of the katan is in fact invalid, but considering that there are thousands of other shekalim in the public store, the few shekalim contributed by ketanim are bateil b’rov. Another possible approach stems from the fact that the Rishonim debate whether the obligation of machatzis hashekel begins from age 13 or from age 20. Perhaps the ketanim spoken of are halachic adults above the age of 13 who have not yet reached the age of 20. The Ketzos denies the whole premis of the question and uses this problem to bolster his contention that a mitzvah d’oraysa can be fulfilled using kinyanim derabbanan. One of the classic cases of this genre is the question of whether kiddushin using a ring purchased though a kinyan derabbanan has any validity on a d’orasya level.

Ktzos 28:1 - chiyuv la'tzeis y'dei shamayim (II)

Last week I started a Ktzos and did not finish off the topic. See here for part I: the Rishonim ask what is the difference between a case if ba bamachteres, where Rava apparently did not wish to take his property back from thieves because they had a chiyuv misa and we apply kam lei b’derabbah minei, and a case of esnan zonah with a close relative, where despite the chiyuv misa, the financial obligation to the zonah still exists as a chiyuv latzeis y'dei shamayim and causes the korban to become assur.
Tosfos in Sanhedrin writes that Rava also agrees in the case of ba bamachteret that the thieves should make restitution latzeis y’dei shamayim. However, he still refused their money. These thieves, Tosfos explained, turned over the money only because they thought they were chayav m’dina, which is not true. Rava did not want to accept payment under false pretenses. (Interesting: although they were obligated to make payment anyway, accepting money under false pretense is still assur!) The Ran (B.M 91) answers that the thieves may indeed have not been required to make payment. The case of esnan zonah is fundamentally different from the case of ba bamachteret because the obligation to the zonah is a contractual obligation, and a contractual obligation is not cancelled by kam lei b’derabbah minei, only a financial penalty is cancelled.
What is the point of disagreement – why would Tosfos not accept this sevara? You could perhaps say the issue is how to treat a contract – is keeping an agreement a natural law obligation that doesn't need the court's intereference and hence remains untouched by considerations of kam lei b’derrrabah minei (Ran), or is a contract only meaningful because it is enforceable by the courts, and where the court is blocked from interfering because of kam lei, all bets are off (Tosfos). But AddeRabbi’s nice lomdus in a comment to distinguish between the ba bamachteret and esnan cases got me thinking further. He wrote:

getting fancier, even acc. to rava, we can ask, does kim lei erase the second crime, or the second punishment. in certain cases, it's obvious that it's the latter. for example, your case of etnan. there's one crime with two potential punishments, so the latter punishment is not enforced, but that doesn't mean it doesn't exist on some moral plane… that's the definition of chiyuv latzet yedei shamayim - you have a very real obligation, which simply has no enforcement mechanism. with regard to ba bamachteret, there are 2 actions - breaking in and stealing. the forfeiture of life that comes with breaking in makes us focus on that and ignore the theft. we ignore the second crime itself. stated differently, the context of machteret relegates the theft to trivial status. that's what 'be-damim knenhu' means. in that case, there's no chiyuv latzet yedei shamayim even because no debt was ever accrued (and again, chiyuv latzet isn't equivalent to 'moral obligation').

I want to borrow part of this to explain Tosfos. In the case of esnan, or shor b’disho (B.M. 91), the obligation to pay results from a specific act having occurred. Kam lei b’derabbah minei perhaps does not just mean that the financial penalty that results from an act is cancelled (Ran), but it means that in the world of dinei mamonos it is as if the act never occurred. Even if the obligation for payment is a result of normal dinei mamomos and not a penalty, the trigger that caused the financial obligation to occur is missing, and all that is left is a chiyuv latzeis y’dei shamayim.

Ktzos 28:1 - chiyuv la'tzeis y'dei shamayim

One of the problems of my blog is I do not follow a committment to write only about parsha or daf yomi or some other externally relevant barometer to keep me on any track, so if you are reading you are stuck being shlepped along with whatever I feel like learning. Hope no one minds reviewing some Ketzos…

In a case of ba bamachteres (Sanhedrin 72) where a homeowner has a right to kill a thief caught breaking and entering, the thief is not obligated to return the stolen goods because the thief cannot incur two penalties – potential loss of life as well as an obligation to repay stolen goods – with the same crime. Rav is quoted as applying this rule even if the thief still has the stolen goods in his possession; Rava disagrees and holds that only if the goods are broken is the thief exempt from restitution, but if the stolen property exists, the thief must return it. The gemara relates that Rava’s own property was stolen in a case of ba bamachteres, and when the thief came to return the stolen goods Rava refused to accept them in deference to the Rav’s statement.

The gemara Bava Metziya 91 writes that if one threshes with a muzzled cow, one is chayav malkos and must also pay for the food deprived to the animal. Why, asks the gemara, do we not invoke the rule disallowing double-jeopardy? Rava answers (see the gemara for other solutions) that the court cannot impose two punishments, and will only mete out the punishment of malkos for the crime. However, there remains a moral obligation la’tzaeis y’dei shamayim on the individual to make approproate financial restitution.

Rava proves his answer from the law of esnan zonah – an animal pledged to a prostitute is unfit for use as a korban even if one would be liable for death for having relations with that prostitute (e.g. in a case where she is a blood relative like a mother). The disqualification of the korban is not considered double-jeopardy because although the court cannot enforce payment to the prostitute, the criminal still remains morally liable b’ydei shamayim to fulfill his financial obligation, and that financial obligation disqualifies the korban.

The Rishonim ask: why in the ba ba'machteres case did Rava not accept repayment of his stolen goods (he was not simply being moichel, but refused to even acknowledge the debt)? Even if the court could not impose a payment based on the principle of no double-jeopardy, the thieves remained morally obligated l’tzaeis y’dei shamayim to make restitution?

giving a lulav through matanah al menas l'hachzir

The Rosh writes that if one gives a lulav to someone as a matanah al menas l'hachzir (a sale contigent upon the object being returned), the receiver must be makneh the lulav back to its original owner in a formal act of kinyan. Matanah al menas l'hachzir means (according to the Rosh) that the original owner retains absolutely no rights to the object and therefore he must re-acquire it when its term of use expires. One cannot have a kinyan haguf l'zman - if one transfers just the right to use the lulav temporarily, writes the Rosh, this is not the same as ownership, but falls into the category of shaul, a borrowed lulav. The Rosh cites proof to his position from the gemara which teaches that a lulav should not be given to a child on the first day of Sukkos before being yotzei because the child cannot be makneh the lulav back to its original owner (see last week's posts). The Ketzos (siman 241) disagrees and writes that the mechanism of matanah al menas l'hachzir does not require that the original make a new kinyan to re-aquire his lulav. The gemara that teaches to avoid giving a lulav to a child is addressing the specific case where the owner has specified that he transfers the lulav completely to the child, but in general, matanah al menas l'hachzir is permissable with a minor. Aware that his position contradicts the Rosh and Ritva, the Ketzos cites R' Avigdor Kohein (quoted in Shu'T Rosh #35) who holds that a kinyan made for a specific duration of time (kinyan haguf l'zman) is considered a full kinyan and not called shaul, yet once the term of kinyan expires the object automatically reverts back to its original owner. I believe this is the same opinion of R' Avigdor that those learning the daf Yerushalmi saw referenced by the gilyon on daf 2 of Orlah, but maybe more on that later.

Ones b'yom acharon

(Just finished Mes. Archin - this is apropos of the siym). The Mishna in Archin (31) tells us that on the last possible to redeem a home in a walled city (the Torah allows the seller of such a home one year to repurchase his home from the buyer after which that right is forfeit) the buyer would hide to avoid giving the seller the opportunity to present him with the repurchase monies. Hillel therefore made a takkanah that the money be deposited in the Mikdash, and the seller retake his home even by force. The Ktzos (it seems I post a Ktzos almost weekly - maybe a once a week Ktzos blog is not a bad idea? Comments?) quotes an interersting chiddush of the Agudah based on this halacha. If one made an agreement subject to a condition being fulfilled within a time period, and one the last day of the time period some extraordinary circumstance (an ones) prevented fulfillment, the Agudah writes that one has no claim. After all, we see that if not for Hillel's takkanah, the fact that the buyer made himself unavailable on the last day would serve as no excuse to the seller - why did he wait until the last day when he had 364 days before that to take advanatage of the buback right?

The Ktzos (siman 65) disagrees with the Agudah. The Ktzos argues that in the case of arei chomah, a home in a walled city, the deal is finished at the moment of sale and the Torah simply allows the seller a right of un-doing the sale for 12 months. A claim of ones (extenuating circumstance) can serve to undo an action, but cannot make an action occur. To undo the completed sale, the seller has to see to it that the money is delivered - claiming ones cannot make an event happen. However, if there was a case where a deal was consumated on the condition that a certain event NOT occur over the next 30 days, e.g. if a seller sells a home on the condition that he does not return in 30 days, and due to extenuating circumstances, ones, he is prevented on the final day from returning home therefore fulfilling the condition and triggering the sale, the seller would have the right to claim ones and say that the fulfillment of the condition dues to duress is not valid and does not confirm the sale.

This Ktzos is discussed my many later achronim, so more maybe another time. Just one final note: if one understands the the idea of arei chomah is that the sale is not finalized until the final day of the year has elapsed and the seller has NOT offered to return the money to the buyer, then based on the Ktzos's own analysis, if the seller fails to turn over the money even on the final day due to ones, duress or extenuating circumstances, the sale owuld be cancelled.