1) "KINYAN HA'PEROS K'KINYAN HA'GUF"

QUESTION: The Mishnah says that when a man gifts his property to his son and gives him the Guf (the actual land) immediately and the Peros (produce) after he dies, neither the father nor the son may sell the property in its entirety to a third party. Since the father owns only the Peros, he cannot sell the Guf, and since the son owns only the Guf, he cannot sell the Peros. Accordingly, the Mishnah says that if the son sells the property before the father dies, the buyer does not have rights to the land (to receive the Peros) until after the father dies.

The Gemara discusses a case in which the son sells the property (the Guf), but then he dies before his father dies. The Gemara asks whether, in such a case, the buyer receives the Peros and Guf after the father's death, even though the property never entered the son's possession (since he died before his father). Rebbi Yochanan maintains that the buyer does not acquire the property at all. This ruling of Rebbi Yochanan follows his general position that "Kinyan ha'Peros k'Kinyan ha'Guf Dami" -- whoever has the rights to the Peros (in this case, the father) also has the rights to the Guf of the land. According to this view, the son -- who never acquired the Peros -- did not have ownership of the property in order to sell it.

According to Rebbi Yochanan, why is the sale valid when the son does not die before his father? The Mishnah says that when the son sells the land, the buyer does receive the Guf and the Peros after the father dies. If, as Rebbi Yochanan maintains, the father owns the Guf by virtue of his ownership of the Peros, then why is the son's sale valid?

ANSWER: The RI MI'GASH answers that Rebbi Yochanan's position of "Kinyan ha'Peros k'Kinyan ha'Guf" does not mean that the person who owns the Peros also owns, fully and absolutely, the Guf of the land. Rather, it means that for all matters concerning the Peros, the owner of the Peros is considered the owner of the Guf. In this case, as long as the father is alive and owns the Peros, he also has a Kinyan on the Guf of the land with regard to the Peros. His ownership of the Guf allows him to receive its Peros. The actual Guf, though, belongs to the son, and that is why he is able to sell it while his father is alive. The sale takes effect retroactively after the father's death, when the remaining aspect of the Guf comes into the son's possession.

When the son dies before the father, however, the son's sale of the land is not valid, because at the time that he sold it he lacked an absolute and exclusive ownership of the Guf; he did not own the Guf with regard to the Peros, since the father owned the Guf with regard to the Peros. (See RAMBAN and KOVETZ SHI'URIM.) (I. Alsheich)

136b----------------------------------------136b

2) BRINGING "BIKURIM" FROM A FIELD WHICH ONE DOES NOT FULLY OWN

QUESTION: The Mishnah says that when a man gifts his property to his son and gives him the Guf (the actual land) immediately and the Peros (produce) after he dies, neither the father nor the son may sell the property to a third party in its entirety. Accordingly, the Mishnah says that if the son sells the property before the father dies, the buyer does not have rights to the land (to receive the Peros) until after the father dies.

The Gemara discusses a case in which the son sells the property (the Guf), but then he dies before his father dies. The Gemara asks whether, in such a case, the buyer receives the Peros and Guf after the father's death, even though the property never entered the son's possession (since he died before his father). Rebbi Yochanan maintains that the buyer does not acquire the property at all. This ruling of Rebbi Yochanan follows his general position that "Kinyan ha'Peros k'Kinyan ha'Guf Dami" -- whoever has the rights to the Peros (in this case, the father) also has the rights to the Guf of the land. According to this view, the son -- who never acquired the Peros -- did not have ownership of the property in order to sell it. Reish Lakish argues and maintains that "Kinyan ha'Peros" is not "k'Kinyan ha'Guf," and thus the son, and not the father, owns the Guf, and thus his sale is binding even if he dies before his father does.

The Gemara cites another case in which Rebbi Yochanan and Reish Lakish argue as to whether "Kinyan ha'Peros k'Kinyan ha'Guf Dami." When a person sells the rights to the Peros of his field, Rebbi Yochanan maintains that the buyer is obligated to bring the first fruits as Bikurim and to read the Parshah of Bikurim ("Mevi v'Korei"). Reish Lakish argues and says that while he must bring the first fruits as Bikurim, he does not read the Parshah of Bikurim ("Mevi v'Eino Korei").

If the buyer is not obligated to read the Parshah of Bikurim, then why is he obligated to bring the fruits as Bikurim?

ANSWERS:

(a) The RAMBAN explains that there is a doubt in Halachah as to whether a Kinyan Peros (according to Reish Lakish, who rules that it is not like a Kinyan ha'Guf) fulfills the qualification of "Asher Tavi me'Artzecha" (Devarim 26:2), which is the criterion described in the verse that teaches the obligation to bring Bikurim. In any case of a Safek as to whether a person is obligated to bring Bikurim, the Halachah is that he must bring them but he does not read the Parshah of Bikurim. (See Insights to Bava Basra 81:3.)

(b) TOSFOS explains that the obligation to bring Bikurim in this case is only mid'Rabanan. The buyer does not have an obligation mid'Oraisa to bring Bikurim because he does not own the land. The Rabanan, however, did not institute that the buyer must read the Parshah of Bikurim, which contains the phrase "from the land that You gave to me," because if he were to read that phrase, he would appear to be saying an untruth, since he does not own the actual land.

(c) The RASHBAM explains that according to Reish Lakish, the buyer does not read the Parshah of Bikurim because he cannot say the words, "... ha'Adamah Asher Nasata Li" -- "from the land that You gave to me" (Devarim 26:10), since the land does not belong to him but to the original owner (since "Kinyan ha'Peros" is not "k'Kinyan ha'Guf"). However, the buyer is obligated to bring Bikurim because he does own the land in the sense that his fruits may derive nourishment from the ground. The verse that teaches the obligation to bring Bikurim states, "Asher Tavi me'Artzecha" (Devarim 26:2), and such a form of ownership is sufficient to fulfill the criterion of that verse.

TOSFOS questions this explanation. Why does the buyer's partial ownership of the land (which allows his fruits to be nourished from it) fulfill the verse of "Asher Tavi me'Artzecha" (Devarim 26:2) with regard to the obligation to bring Bikurim, and not the verse of "... ha'Adamah Asher Nasata Li" (Devarim 26:10), with regard to the obligation to read the Parshah? Tosfos maintains that the buyer's partial ownership should qualify either for both or for neither, but there is no difference between the forms of ownership required by each verse.

1. The Rashbam might have understood the Gemara the way the TOSFOS RID explains earlier (27a). The Tosfos Rid writes that the obligation to bring Bikurim differs from the obligation to read the Parshah of Bikurim. Although a person cannot read the Parshah of Bikurim unless he actually owns the land beneath the tree, he can bring Bikurim even though he does not own the land, since he has permission to keep his tree there. The verses that discuss bringing Bikurim -- "Artzecha" (Devarim 26:2) and "Admascha" (Shemos 23:19) -- exclude only fruit from trees that were planted on land that the person is not permitted to use (see Sukah 9a). If, however, a person planted a tree on land that does not belong to him, he still would be obligated to bring Bikurim as long as he was permitted to plant the tree. The verse that discusses reading the Parshah of Bikurim says "ha'Adamah Asher Nasata Li" (Devarim 26:10), which implies that the land was actually given to him and he owns it. (See Insights to Bava Basra 27:1:b, and 81:2.)

The Tosfos Rid derives this from the words of Reish Lakish here as well as from the reply of Rebbi Elazar in the Gemara earlier (81a). When Rebbi Elazar was asked why a person who owns two trees must bring Bikurim but does not read the Parshah, Rebbi Elazar replied that the "early authorities did not tell the reason, and you are asking me to teach it in the Beis Midrash?!" This implies that there is a reason to distinguish between the obligation to bring Bikurim and the obligation to read the Parshah of Bikurim, but Rebbi Elazar did not want to teach it in the Beis Midrash. Rebbi Elazar maintained that the two obligations are not comparable to each other.

This also seems to be the opinion of the Rashbam here, who writes that a person must bring Bikurim even if he does not own the land beneath the tree, but he does need to own the land in order to read the Parshah of Bikurim.

2. The KETZOS HA'CHOSHEN (257:3) explains the Rashbam based on the words of RABEINU AVIGDOR KOHEN TZEDEK cited by the TESHUVOS HA'ROSH (#35). Rabeinu Avigdor discusses why a person fulfills his obligation of Arba'as ha'Minim with an Esrog that was given to him as a gift on condition that he return it ("Matanah Al Menas l'Hachzir"; see Gemara later, 137b). He explains that even though the recipient's right to use the Esrog temporarily is a Kinyan Peros (the "Peros" being the usage of the object), and a person can fulfill the Mitzvah of Arba'as ha'Minim only with an Esrog that he owns ("v'Lakachtem Lachem"; Vayikra 23:40), a temporary ownership suffices to meet this requirement. Even though the recipient does not have the right to eat the Esrog (since he must return it eventually to the giver), which indicates that he does not have full ownership over it, his ownership of the Esrog is considered a Kinyan ha'Guf for the moment that he is in possession of it. The Torah requires only that it be considered his object for the moment that he uses it for the Mitzvah. Thus, even if the Esrog will not belong to him after he has performed the Mitzvah, he still will have fulfilled the Mitzvah due to his temporary ownership of the Esrog.

Based on this, the Ketzos ha'Choshen explains that the obligation to bring Bikurim, according to the Rashbam, is also based on the ownership of the land at the moment that the fruits are brought (as the verse says "Asher Tavi"). Since the seller sold the land with regard to reaping the fruits, the land is considered to belong to the buyer with a temporary Kinyan ha'Guf. It is called a "Kinyan Peros" because the Kinyan ha'Guf is only temporary; however, the nature of the Kinyan is that of a Kinyan ha'Guf, similar to the case of a temporary gift. Just as the temporary ownership of an Esrog qualifies as ownership with regard to the Mitzvah of Arba'as ha'Minim, the temporary ownership of land qualifies as ownership with regard to the Mitzvah to bring Bikurim. On the other hand, the buyer does not read the Parshah of Bikurim because he cannot say the words, "... ha'Adamah Asher Nasata Li" -- "from the land that You gave to me" (Devarim 26:10). These words denote a permanent ownership of the land (even beyond the moment at which the owner brings the Bikurim), and the buyer's ownership of the land is not permanent.

RAV SHACH zt'l (in AVI EZRI, Hilchos Ishus 8:24, end of #2) explains the intent of the Ketzos ha'Choshen as follows. The verse that teaches the obligation to bring Bikurim, "Asher Tavi me'Artzecha" (Devarim 26:2), implies that the obligation depends on whether the land is in his possession. Thus, the buyer is obligated to bring Bikurim because the land is in his possession at this moment. In contrast, the verse that teaches the obligation to read the Parshah of Bikurim, "ha'Adamah Asher Nasata Li" (Devarim 26:10), implies that in order to read the Parshah of Bikurim, the person who brings the fruits must be the absolute and unconditional owner of the land, with complete sovereignty over it. If he is required to give the land back at some later time (i.e. when the trees die, or when the term of the sale of the fruits is over), then he does not have complete sovereignty over the land and is not the absolute and unconditional owner, and therefore he does not read the Parshah of Bikurim. (I. Alsheich)

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