Someone told me he listened to Eli Stefansky's shiur and he said if a recipient of a gift conditional upon return (GCUR) used the esrog and the pitom fell off, he is not yotzei since the chazarus hamatana is lacking. Is it possible to challenge this and say he was yozei and that his chazarus matana was NOT lacking based on baba Basra 137b that GCUR can be makdesh an ox and returning it to the giftor is a complete chazarus matana and fulfillment of the condition?
DANIEL GRAY, Toronto Canada
This is a fascinating question but my initial reaction would be to say that the esrog without a pitum is not like the ox that became holy because the ox that become kodesh is a better ox whilst the esrog without a pitum is worthless on Sukos; it is a worse esrog than he gave him, so he has not returned a Sukos-dika esrog. The ox is still an ox but has just gone up in Madreigah.
Good Shabbos
Dovid Bloom
Follow-up reply:
I looked into this question more closely and I think that my initial reasoning was in the right direction, bs'd, but I will now try and show the sources.
1) The Rosh here #30 writes that when the Gemara says that if he returned the esrog he is yotzei, this specifically means that he returned the esrog in a way that the owners can now fulfil the Mitzvah with this esrog. The Rosh is cited by the Rema in Shulchan Aruch Orach Chaim 658:5, that the esrog must be returned in a way that the owners can be yotzei the Mitzvah with the esrog. Therefore if the pitum fell off, he cannot be yotzei so it is not considered that he has returned the esrog.
2) The Gemara Bava Basra 137b is different. Rava said there in the name of Rav Nachman that if he was makdish the ox and then returned it this is considered as correctly returned. Rava then asked Rav Nachman what has he returned? Rashbam explained that since he was makdish the ox this means he returned the ox to hekdesh; not to the owners. Rav Nachman replied to Rava "but what has he made him lose?!". He has returned to him an intact ox, so Rav Nachman argues that this is a good chazarah. According to this answer of Rav Nachman, in the case of the esrog without the pitum it certainly is considered chaser; he has made him lose something from the esrog; so Rav Nachman will agree that it is not a good return.
3) Rav Ashi there summarized and said that if at the beginning he said "On condition that you return it" this is considered returned even if in the meantime he was makdish it. But if he said "On condition that you return it to me " this means that the ox owner wants to receive back something that he can use, so if it became hekdesh he can no longer use it so this is not a valid chazarah.
4) The Rashba Bava Basra 137b DH Amar writes that since it is possible to redeem the ox from hekdesh and one may derive benefit from it, this is considered as a useful return. An esrog without a pitum on Sukos is a lot worse, since he clearly wants it on Sukos in order to do the Mitzvah.
Kesivah vaChasimah Tovah
Dovid Bloom
Hi and thanks. When do we apply 'heh shelcha lefanecha' (Bava Kama 9a) and Rava saying if he stole chometz and Pesach went by (Bava Kama 105a) which is analogous to returning an esrog without pitom during Sukkos as both have no value.
And would this question be dependent at all in the question of the achronim (such as Ktzos) of whether a gift conditional upon return (GCUR) never left the possession of the lender and therefore doesn't need a hakna'ah back to him, or the opinion that (GCUR) did leave the possession of the lender and therefore does need a hakna'ah back to him.
For example, ganav, gazlan, shomer are examples of where 'heh shelcha lefanecha' (HSL) is employed and according to said latter opinion since one needs to return it back to the lender, any acceptable 'return' is OK including HSL (whereas the former opinion holds it never left the owner and a broken pitom with HSL would be unacceptable).
One could also potentially swap and say according to said latter opinion since one needs to return it back to the lender, a full-fledged 'return' is needing thereby precluding HSL with a broken pitom (whereas the former opinion holds it never left the owner, a return per se isn't needed and a broken pitom with HSL would achieve proper usage of the esrog by the borrower when it still had its pitom and an acceptable discharge back into the lender's property using HSL where that return doesn't require a full-fledged haknaeh to implement the low level of 'return' needed.
Along the lines of the Chidushei Hagrach (gneivah a-16) that if the gneiavah remains at hand (b'ein) one can employ HSL, so too where the esrog borrower returns the esrog along with the detached pitom in Grade A fruit form with no parts missing (it's b'ein) by employing HSL, which law would inherently allow the returner to disregard "the Esrog without a Pitom is worthless on Sukos, it is worth less than the Esrog than he gave him, so he has not returned a "Sukos-dik" Esrog" and "an Esrog without a Pitom on Sukos is a lot worse, since he clearly wants it on Sukos in order to do the Mitzvah" and say true, but so what, HSL.
I am not seeking a reply that every Rishon and Acharon will agree to (and the Rosh you cited may disagree), I am merely seeking substantiation by any lone or group of Rishonim and/or Acharonim for the original proposed rebuttal that wondered if one could be yotzei if the pitom broke off after shaking for mitzvah if one returned it to lender b'ein , claiming HSL.
Daniel Gray