[Is it possible if this does not go up on the website for the public? I would rather it just remain an email correspondence. Thanks.]
Rashi in Gittin 30a, by "mezakeh lahem al yidei acherim, says that after the zechiyah takes place, the ba'al can be "chozer u'machziran lo". However, why is the ba'al able to just take back the maaser? It belongs to the Levi!
The scenario is where the Levi owes $100 to the Yisrael. The Yisrael is Mezakeh $100 of Ma'aser to the Levi via the Yisrael's good friend. By this Zechiyah, the Yisrael has fulfilled the Mitzvah of Nesinah, of giving the Ma'aser to the Levi, but he can now take it back in return for foregoing the $100 that the Levi owed him.
Kol Tuv,
Dovid Bloom
But some of the Rishonim, such as the Ritva, say, for this very reason, that this is all a takkanas Chachamim. How could the Yisroel take back what no longer belongs to him? [The Meiri does argue on these Rishonim, but I am not sure if what he is saying fits with pshat in Rashi.]
1) The Ritva writes in the name of the Yerushalmi that the Din of the Mishnah applies only if the Yisrael is now lending the money to the Levi. In order that people be prepared to lend money to Leviyim, without being apprehensive that they might never return the loan, Chazal instituted that the Yisrael now may lend money to the Levi, and, later on -- when the Yisrael has Ma'aser fruit that he must give to a Levi -- he is entitled to keep the Ma'aser fruit for himself and in return for this he does not ask the Levi for the money back. This works only through a Takanah; because the Levi never actually receives the Yisrael's Ma'aser fruit. So that it should be considered that the Yisrael has performed the Mitzvah of "Nesinah," we require a Takanah of Chazal that one can fulfill Nesinah even if one does not actually give the fruit to the Levi, but rather merely refrains from asking him to return the money he owes.
2) The Ritva writes that if the Yisrael has already lent the money to the Levi, but now is trying to find a way to ensure he gets his money back, we would not make a Takanah to say that the Yisrael does not have to give his Ma'aser to the Levi, because the point of the Takanah is to help the Kohen or Levi receive a loan, not to help the Yisrael get back his money.
3) This is what the Ritva means when he writes, "Einam Zochim b'Peiros Min ha'Din Ela d'Rabanan Asa'um k'Zochim u'Mishum Takanah." The Takanah is that it is as if the Levi has received the fruit, even though the fruit never came into his hands. This is exactly why the Yisrael can take the fruit back -- because it is as if the Levi has received the fruits and then returns the fruits to the Yisrael as a payment for the loan.
4) Rashi does seem to agree with the Ritva. We see this a few lines later in Rashi DH Aval Kohen, where he writes, "d'Keivan d'Asa'uhu k'Zocheh" -- "since they made him like a Zocheh." This suggests that it is a Takanas Chachamim.
(I could not find the Me'iri you mentioned.)
Kol Tuv,
Dovid Bloom
If I'm reading the Pnei Yehoshua (D"H Aval Kohen) correctly, he seems to be saying that Rashi is only speaking according to Ulla. This indeed seems to be pashtus in Rashi, as Ulla speaks about "Asu Es She'eino Zocheh K'Zocheh". Furthermore, specifically by Ulla does Rashi (D"H Asu Es She'eino Zocheh K'Zocheh) specify that it is a takkanah, but by Rav and Shmuel, Rashi gives a sevara. The Meiri can be found in the paragraph "u'Mishnaseinu" in Gittin 30a. Below is a picture of it.
1) See the Dvar Yakov here, page 361, in the name of the Shi'urim of Rav Shmuel Rozovski, Bava Basra 123b, #51, who writes that the Ritva explains that according to Ula there is a Takanah that for every Kohen one says, "Asu she'Eino Zocheh k'Zocheh," while according to Rav only for the friends of the Kohen is there such a Takanah. We see that even according to Rav there is a Takanah, but it is not as wide as the Takanah according to Ula. It may be that Rashi also agrees with this approach.
2) It should be pointed out that Rav Papa is referring to the Beraisa, and it is on Rav Papa that Rashi (DH Aval Kohen) writes that "Asa'uhu k'Zocheh," which suggests that not only Rebbi Yosi (to whose opinion the Gemara refers as a lone opinion, so one would not expect Rashi to explain the Sugya only according to Rebbi Yosi) holds of a Takanah, but also Rav and Shmuel agree with the Takanah.
3) Rashi (DH b'Makirei and DH b'Mezakeh) writes, "k'Man d'Matu l'Yadei" -- it is as if it has reached the hands of the Kohen. I suggest that this means that it is only "as if," but it has not actually reached the hands of the Kohen, and even according to Rav and Shmuel we require a Takanah, as well as a Sevara, in order to be able to say that the Yisrael has actually performed "Nesinah."
4) We may suggest that Rashi here has support from the Aliyos d'Rabeinu Yonah, Bava Basra 123b, that is cited by Rav Shmuel Rozovski, mentioned above. Rabeinu Yonah writes: "With Makirei Kehunah he cannot retract... because we hold like Rebbi Yosi, that they made 'Eino Zocheh' like 'Zocheh,' as is said in Gitin 30a."
Rabeinu Yonah seems very difficult to understand, because Makirei Kehunah is Rav's opinion, so how can Rabeinu Yonah ascribe it to Rebbi Yosi?
However, if we say that even according to Rav one also needs to resort to a Takanah, we can understand Rabeinu Yonah. And Rashi also learns that Rav and Shmuel also require the Takanah, as I asserted above.
5) With this explanation we may also answer the question of the Pnei Yehoshua on Rashi. The Pnei Yehoshua asks on, what Rashi seems to say, that Rav Papa holds like Ula. However, if we say that Rashi maintains that Rav and Shmuel also say that one requires a Takanah, then when Rashi writes, "Asa'uhu k'Zocheh," this also follows Rav and Shmuel, so we now have an answer to the question of the Pnei Yehoshua.
6) Finally, to comment on the Me'iri:
The Me'iri writes "u'Shnei Eilu Halachah Hem." One cannot prove from these words of the Me'iri whether or not he learns that according to Rav and Shmuel there is also a Takanah. All the Me'iri means is that the Halachah follows these two opinions, i.e. Rav and Shmuel, that the Mitzvah of giving Terumah and Ma'aseros to the Kohen or Levi may be fulfilled by not demanding that the loan be returned -- either in a case where the Yisrael is Makirei Kehunah, or when the Yisrael is Mezakeh Al Yedei Acher.
The Me'iri implies that the Halachah follows only these two, but does not follow Ula. Indeed, in the next paragraph, the Me'iri writes that most Poskim ruled like Rav and Shmuel, but not like Ula.
Kol Tuv,
Dovid Bloom
It does not seem to me that Rashi would hold that Rav and Shmuel hold of a takkanah:
1) Rashi only mentions the idea of takkanah specifically by Ulla and not by Rav and Shmuel:
a) By Rav, Rashi could have said that makarei kehunah works mi'takkanas chachamim, but instead, he gives a seemingly complicated sevara. [See the Kehillos Yaakov here (Siman 20).] On the other hand, he explicitly says takkanah only by Ulla. Furthermore, Rashi does not mention takkanah by the shitah of Shmuel as well.
b) Regarding Shmuel, there are those who explain that while Shmuel holds like Rebbi Yosi in other places. He does not hold like Rebbi Yosi here.
2) Regarding "asa'uhu k'zocheh", the Otzar Mefarshei HaTalmud references the Yad Dovid and Shu"t Admas Kadesh (by Rav Nissim Chaim Moshe Mizrachi) who discuss it. I do not have full access to those seforim, however, but it seems that there are those who answer up why Rashi is discussing according to Ulla. (I do not have a Nachalas Moshe, but I believe I saw something in D"H Nisya'ashu Ha'Ba'alim on Otzar HaChochma.) If you have those seforim, perhaps you can enlighten me.
3) "K'man d'mata/d'matu l'yadei/l'yadeihu" is the definition of zechiyah, so I don't really see a rayah from that.
Regarding the Meiri, the emphasis was supposed to be on "Zechus Hu L'Kohen". As the Mesivta points out, this is mashma that we are dealing with a din d'oraisa. This is unlike the Rashba and Ritva/Rabbeinu Crescas, who say explicitly that we are dealing with a takkanas chachamim.
Also, just a side question - what is the difference exactly between tofes l'ba'al chov shelo b'makom she'chov le'acherim (assuming like rashi, that it is mi'din zechiyah) and zachin mei'adam?
Thank you very much for your penetrating comments.
1)
a) In fact, the Gemara -- not only Rashi -- mentions the Takanah explicitly only according to Ula. However, my argument is that Rashi does, in effect, mention the Takanah not specifically by Ula, because Rashi (DH Aval Kohen) is going on Rav Papa, and Rav Papa is going on the Beraisa. Since the Gemara before stated that Ula is a Yechida'ah, a lone opinion, it does not seem logical that Rashi would explain the Beraisa according to a lone opinion. Therefore, I argue that Rashi learns that "Asa'uhu k'Zocheh" does not apply only according to Ula.
As I mentioned in my second reply, the Dvar Yakov writes in the name of Rav Shmuel Rozovsky that according to Rabeinu Yonah in Bava Basra 123b and the Ritva here, Ula maintains that there is a Takanah for every Kohen to make him a Zocheh, while according to Rav there is only a Takanah for the friends of the Kohen to be able to give their Terumah in this way. I am just adding that this fits also with Rashi, who does not mention the Takanah while explaining Rav, but does mention the Takanah, according to those who disagree with Ula; when explaining Rav Papa.
The Ritva writes that there is a Takanah both according to Rav and according to Shmuel. The Rambam (Hilchos Ma'aser 7:6) rules like both Rav and Shmuel, but not like Ula. According to my argument that the Takanah is not only according to Ula, if I say that there is a Takanah according to Rav, I can just as easily say that there is a Takanah according to Shmuel, and this way Rashi can be saying the same as the Ritva.
I must add that the Dvar Yakov cites the Dvar Avraham (vol. 1, end of chapter 1, DH ul'Inyan), who writes that since Ula says that the reason is because of "Asu she'Eino Zocheh k'Zocheh," this suggests that Rav and Shmuel do not agree with this. This is your argument. However, Rav Shmuel Rozovsky disagrees with this, and I am just trying to provide support for Rav Shmuel from the words of Rashi.
So we are not the first people in history to discuss this!
b) Yes, the Gemara in Bava Metzia 12a tells us that Shmuel said that the Halachah follows Rebbi Yosi. Tosfos there (DH v'Amar) asks how this fits with Gitin 30a.
2) The Nachalas Moshe (DH Lo Shanu Ela Ba'al ha'Bayis b'Kohen) writes:
???"? ??? ??? ???? ????? ???????? ??? ?? ????? ???? ????? ??"? ???"? ??? ??? ?????? ??? ????? ??????? ???' ??? ??? ????? ?? ?"? ??? ??? ??? ??? ?????? ??? ?? ??????? ???? ??? ??? ???? ?????? ?????
The Nachalas Moshe does seem to understand that "Asa'uhu k'Zocheh" applies only according to Ula. The Nachalas Moshe writes that Rashi could have written according to Shmuel because of "Mezakeh Al Yedei Acherim," or Rashi could have also written according to Rav that the Terumah became his because he is one of the Makirei Kehunah, but one does see from the Nachalas Moshe that "Asa'uhu k'Zocheh" applies only according to Ula.
3) However, I wish to add that I found on Otzar ha'Chochmah, bs'd, that the Pnei Shlomo writes exactly as I have been arguing. (The Pnei Shlomo was written by Rav Shlomo Ganzfried (of Hungary, 1804-1886), the author of Kitzur Shulchan Aruch.) He writes that one requires the Takanah also according to Rav and Shmuel, because without the Takanah one could not say that it has reached the hands of the Kohen, so the Yisrael would not be able to take it back. Commenting on Rashi (DH Aval Kohen), the Pnei Shlomo writes that Rashi is certainly not going according to the reason of Ula, because surely everyone agrees that one says "Asa'uhu k'Zocheh" mid'Rabanan.
4) In fact, if one does an Otzar ha'Chochmah search for??? ??? ??????? ????? one will find some of the classic Mefarshim who say as you say, and some who say as I do. So, as I said, this is not a new discussion!
5) Indeed, this search brings up the Yad David, who writes that Rashi is going according to the opinion that "Asa'hu she'Eino Zocheh k'Zocheh." The Yad David understands that Rashi learns that the Beraisa is going according to Ula.
6) Before we go further, I just want to note that I found another Mefaresh in Otzar ha'Chochmah, the Kisei Rachamim, who understood like Rav Shmuel Rozovsky and the Pnei Shlomo, that Rashi can also be going according to Rav and Shmuel (unlike the Yad David). So there is a major dispute among the Mefarshim how to understand Rashi.
7) I looked up the She'eilos u'Teshuvos Admas Kodesh, but he does not seem to be discussing the question of whether Rashi is following Ula. In fact, the citation in Otzar Mefarshei ha'Talmud, page 268, citation 215, does not suggest that he is discussing this.
8) Now to my Diyuk from "k'Man d'Mata": What I meant to say is that Rashi writes "k'Man" -- it is only like it has reached the hands of the Kohen, but in reality it clearly has not actually reached the hands of the Kohen. We still need a Takanah for us to be able to say that the Yisrael has performed the Mitzvah of "Nesinah," and my argument is that Rashi is hinting that even according to Rav and Shmuel it is only like but not actual. One still requires a Takanah to make it actual.
There is still more to write, bs'd, but I must close here.
Kol Tuv,
Dovid Bloom