Two of the great acharonim on Choshen Mishpat are the Ketzos Hachoshen and the Nesivos Hamishpat. They have many great differences in opinion studied regularly in yeshivos. One of their many notable disagreements relates to the temporary ownership of esrogim.
We have a Torah mitzvah to take arba minim on the first day of Succos, even when there’s no longer a beis hamikdash.
In order to fulfill this mitzvah, the arba minim must belong to the person taking them. They cannot be borrowed or stolen. The Gemara in Succah (29b-30a) derives this from the verse “lachem” – which indicates that the arba minim must be yours.
The Gemara in Bava Basra (137b) says that if Reuven gave Shimon an esrog on condition that it be returned, Shimon may use the esrog and fulfill the mitzvah with it, as long as he eventually returns it to Reuven. When Shimon uses it, it’s considered his at that moment in time.
However, if Shimon didn’t return the esrog, he didn’t fulfill the obligation.
This type of transaction is called a matanah al menas lehachazir – a present made on condition that it be returned. The ruling in the Gemara reflects the idea that a matanah al menas lehachazir is a legitime transfer of ownership.
How does this work?
The Rosh (Succah 3:30) explains that a matanah al menas lehachazir is a conditional gift. Reuven gives the item to Shimon on condition that Shimon will give it back. In order to make this gift work, Shimon needs to fulfill the condition and give it back at some point. If Shimon doesn’t actively give it back, he is retroactively deemed to have never owned it.
Additionally, the Rosh explains that if Reuven merely gave the esrog to Shimon as a temporary gift to use until Shimon fulfilled the mitzvah – without Shimon ever giving it back – such a transaction wouldn’t work, as it’s considered as if Shimon merely borrowed it.
A similar opinion is found in the Ritva. The Ritva (Kiddushin 6b) says that Shimon needs to give the esrog back to Reuven using a kinyan (acquisition method), like any other person attempting to transfer ownership of an item.
The Ketzos quotes both the Rosh and the Ritva but suggests another approach.
The Ketzos suggests that a matanah al menas lehachazir isn’t just a gift with an added condition mandating Shimon to return it. Rather, it’s as if Reuven gave the esrog to Shimon for a set amount of time, where the gift expires on its own accord. Therefore, Shimon doesn’t need to actively give it back to Reuven – the gift goes back to Reuven on its own. It’s true that the Gemara states that if Shimon doesn’t return the esrog, he does not fulfill the mitzvah – that only means that he can’t sell it to someone else or eat it. Not that he needs to formally return it by means of a kinyan.
The Ketzos admits that Rosh and Ritva both disagree with his opinion. However, he brings the opinion of R’ Avigdor Kohen Tzedek who supports this view – that matanah al menas lehachazir isn’t an ordinary gift with a condition attached to it but instead, a new type of gift given for a set amount of time.
The Nesivos disagrees.
He notes that the Ran in Nedarim (29a) indicates that whenever there’s an acquisition for a set amount of time, that item isn’t fully owned by the acquirer – such an acquisition is called a kinyan peiros. By arba minim on Succos, kinyan peiros isn’t enough for the arba minim to be deemed yours. Therefore, if matanah al menas lehachazir is just a gift for a set amount of time, the recipient of that gift wouldn’t be able to fulfill the mitzvah with it.
(The Ketzos acknowledges this Ran and quotes it but he suggests the Ran is limited to the area of marriage, where an eternal acquisition is required. The Nesivos disagrees, noting that the Ran applies it to other scenarios as well.)
What’s the Difference?
As mentioned, one major difference between the Ketzos and the Nesivos is whether Shimon needs to actively give the esrog back to Reuven using a kinyan or whether a formal kinyan isn’t needed.
Another related ramification to this debate relates to a minor.
A minor doesn’t have the power to give a gift to someone else on a Torah level. If a matanah al menas lehachazir requires that the recipient actually give it back using a kinyan, a minor isn’t able to give it back. However, if a matanah al menas lehachazir is just a gift for a set amount of time that expires on its own, then even if one gave it to a minor, the gift can still revert back to the giver without a formal kinyan.
As a matter of halacha, the Be’ur Halacha (O:C 658:6) rules that one shouldn’t give an esrog as a matanah al menas lehachazir to a minor and that by doing so, the giver will no longer be able to fulfill the mitzvah using that esrog.
The Chemdas Shlomo’s Question
The Chemdas Shlomo asks a powerful question on the Ketzos.
The Gemara in Kiddushin (6b) says that if one gave terumah to a Kohen as a matanah al menas lehachazir, it works, although it’s forbidden to do so.
If matanah al menas lehachazir is a gift for a set amount of time that reverts back to the owner, how can it work by terumah? Terumah is property of the Kohanic tribe as a whole and all the initial owner has is his right to choose which Kohen to give it to! How can he give terumah as a gift which will expire and return to him!
The acharonim explain that even to the Ketzos and R’ Avigdor Kohen Tzedek, they must also agree that a matanah al menas lehachazir can also work as a conditional gift. That’s the case of the Gemara in Kiddushin by terumah. Their entire innovation is that there’s an additional category of matanah al menas lehachazir – where one can give a gift for a specific amount of time. That works by esrog but admittedly, would not work for someone wanting to give terumah.